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WAR POWERS OF THE EXECUTIVE 
IN THE UNITED STATES 




BY 



CLARENCE ARTHUR BERDAHL 

A. B. St. Olaf College, 1914 
A. M. University of South Dakota, 1917 



THESIS 

Submitted in Partial Fulfillment' of the Requirements for the 
Degree of 

DOCTOR OF PHILOSOPHY 
IN POLITICAL SCIENCE 

IN 

THE GRADUATE SCHOOL 

OF THE 

UNIVERSITY OF ILLINOIS 

1920 



WAR POWERS OF THE EXECUTIVE 
IN THE UNITED STATES 



BY 
CLARENCE ARTHUR BERDAHL 

A.B., St. Olaf College, 1914 
■ A.M., University of South Dakota, 1917 



THESIS 

SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR 

THE DEGREE OF DOCTOR OF PHILOSOPHY IN POLITICAL 

SCIENCE IN THE GRADUATE SCHOOL OF THE 

UNIVERSITY OF ILLINOIS, 1920 



Reprinted from the University of Illinois Studies in the Social Sciences, 
Volume IX, Nos. 1-2, March- June, 1920. 



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Copyright, 1921 
By The University of Illinois 



LloRARY OF wiG^sF"^! 
R£C£ivED *" I 

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War Powers of the Executive 
in the United States 



BY 

CLARENCE A. BERDAHL, Ph. D. 

Instructor in Political Science 
University of Illinois 



CONTENTS 

Page 

Preface 7 

Chapter I, Introduction 11 

General conceptions of executive power 11 

General conceptions of the war powers 15 

Source of the President's war powers 20 

Forms of presidential action 20 

Delegation of presidential powers 21 

I. POWEES EELATING TO THE BEGINNING OF WAE 

Chapter II. Control of Foreign Eelatioks 25 

Initiation and formulation of foreign policy 26 

Power of recognition 31 

Power to sever diplomatic relations 35 

Executive agreements 37 

Chapter III. Military Measures Short of War 43 

Employment of armed forces in aid of the civil power 43 

Protection of ' ' inchoate ' ' interests of the United States 45 

Protection of American rights and interests abroad 49*^ 

Intervention and police supervision 53 " 

Chapter IV. Power of Defense 58 

Power to begin a ' ' defensive ' ' war 58 

Defense against attack or invasion 62 

Punitive expeditions 65 

Arming of merchant vessels 67 

Eecognition of ' ' existing" state of war 70 

Chapter V. Powers with Eegard to a Declaration of War 78 

Debates in Convention of 1787 78 

Importance of power of recommendation 80 

Declaration of causes and purposes 94 

Power of veto 95 

Notification of state of war 96 

II. MILITAEY POWEES IN TIME OF WAE 

Chapter VI. Power to Eaise and Organize the Armed Forces . . . 101 

Nature of the President's power 101 

Powers under voluntary enlistment 101 

Powers under conscription 105 

Exercise of power without authority 108 

Powers with regard to organization Ill 

Chapter VII. Powers of Command 115 

Nature of powers as commander-in-chief 115 

Power of personal command 118 

General direction of military operations 121 



Appointment and dismissal of officers 126 

Powers with regard to the militia 130 

Chapter VIII. Powers of Military Jurisdiction 138 

Courts-martial 138 

Military commissions 143 

Power of pardon 148 

Chapter IX, Powers of Military Government 152 

Definition and authority to establish 152 

Power to determine its character 154 

Functions under military government 157 

III. CIVIL POWEES IN TIME OF WAE 

Chapter X. Control of Administration 167 

Military administrative agencies 167 

Special war administrative services 170 

Proposals for coordination 172 

Overman Act 174 

Chapter XI. Powers of Police Control 182 

The war power and the Bill of Eights 182 

Police control of aliens 184 

Suspension of the writ of habeas corpus 188 

Power of censorship 192 

Chapter XII. Powers of Economic Control 203 

Control of food and fuel 204 

Control of trade and industry 208 

Control of private property 212 

Control of transportation and communication 214 

IV. POWEES EELATING TO THE TEEMINATION OF WAE 

Chapter XIII. Power of Terminating War in the United States 223 

Methods of terminating war 223 

Eecent opinions and actions in the United States 224 

Debates in Convention of 1787 228 

Official declarations by Congress k,30 

Chapter XIV. Powers with Eegard to a Treaty of Peace 232 

Armistice and preliminary protocol 232 

Appointment of peace commissioners 237 

Control of peace negotiations 242 

Final ratification 246 

Chapter XV. Powers with Eegard to Eeconstruction 250 

Eesumption of diplomatic relations 251 

Government of acquired territory 252 

Powers under recent war legislation 262 

Chapter XVI. Conclusion 265 

Bibliography 271 

Table of Cases 283 

Index 285 



PREFACE 

The powers of the Executive relating to war have received 
surprisingly little attention in treatises and commentaries on 
the Constitution. They are usually passed by with little more 
than a repetition of the constitutional provision making the 
President the Commander-in-Chief of the armed forces of the 
nation. This study is an attempt to describe these war powers 
more fully and systematically than has heretofore been done. 
For this purpose, the term ''war powers" has been interpreted 
somewhat liberally, so as to include not only the powers that 
may be exercised during the actual conduct of war, but also 
those that relate to the initiation and termination of war and to 
the reconstruction period following war. It has been necessary, 
in great measure, to work over old material and to make use of 
familiar historical incidents. Nevertheless, it is hoped that 
something has been contributed to show more clearly the com- 
prehensive scope and the almost unlimited nature of this phase 
of the President 's power. 

The writer is indebted to members of the Political Science 
Seminar of the University of Illinois, and more especially to 
Professors Garner and Fairlie, for valuable suggestions and 
kindly criticism. He is alone responsible for any errors of fact 
or conclusion. 

University of Illinois 



"It is difficult to describe any single part of a 
great governmental system without describing the 
whole of it. Governments are living things and 
operate as organic wholes." 

— Woodrow Wilson. 
Constitutional Government 
in the United States 



CHAPTER I 

INTRODUCTION 

"The executive power shall be vested in a President of the 
United States of America."^ The language here used by the 
Constitution in describing the executive power in the govern- 
ment of the United States is strikingly different from that 
describing the general power of either of the other two great de- 
partments. The article dealing with the legislative department 
uses the words, "All legislative powers herein granted . . "^ 
showing that the following specified powers clearly constitute a 
limitation on the possible claims of that department to power; 
while the article devoted to the judiciary also expressly states 
that the judicial power of the United States "shall extend to" 
certain enumerated cases,^ thereby obviously excluding all other 
cases over which the judiciary might otherwise claim jurisdiction. 

The lack of such express limitations in the article dealing with 
the Executive has led to some difference of opinion as to whether 
the executive power vested in the President by the Constitution 
is defined and limited by the following specified powers, or 
whether it includes other powers not enumerated but naturally 
executive in character. Even if the former interpretation of the 
Constitution is accepted as correct, the conception of the term 
"executive power" still remains somewhat vague, since several 
of the expressly enumerated powers of the President, such as his 
powers as Commander-in-Chief and his power to see that the 
laws are executed, are in themselves undefined in the Constitu- 
tion, uncertain as to their limits, and therefore subject to va- 
rious interpretations. 

1 Constitution, Art. II, See. 1. 

2 IMd., Art. I, Sec. 1. ' 

3 lUd., Art. Ill, Sec. 2. 

11 



12 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [12 

The article dealing with the Executive has therefore been char- 
acterized as ''the most defective part of the Constitution," its 
loose and general expressions enabling the President, by impli- 
cation and construction, ''either to neglect his duties or to en- 
large his powers. " * A distinguished historian says that while 
our Constitution in the main is of the rigid type, its flexible char- 
acter is shown in the provisions conferring the powers and de- 
fining the duties of the Executive. "Everything is clearly stat- 
ed, but the statements do not go beyond the elementary. ' ' Point- 
ing out that while the Constitution did not authorize certain 
of Lincoln's acts, neither did it expressly forbid them, he holds 
that there is ' ' room for inference, a chance for development, and 
an opportunity for a strong man to imprint his character upon 
the office. ' ' ^ Somewhat the same idea was expressed by Presi- 
dent Wilson some years ago when he wrote : ' ' The President 
is at liberty, both in law and conscience, to be as big a man as 
he can. His capacity will set the limit." ° 

A doctrine of constitutional construction — the so-called Wil- 
son-Roosevelt doctrine with regard to the control of matters 
within the "twilight zone" between the national and state jur- 
isdictions '^ — was translated by President Roosevelt into terms 
of inherent executive power. He said : ' ' The most important 
factor in getting the right spirit in my Administration, next 
to insistence upon courage, honesty, and a genuine democracy 
of desire to serve the plain people, was my insistence upon the 
theory that the executive power was limited only by specific 
restrictions and prohibitions appearing in the Constitution or 
imposed by Congress under its constitutional powers. My view 

4 View of Secretary of State Upshur. See his more extended state- 
ment, quoted in Taft, Our Chief Magistrate and His Powers, 141. 

5 Rhodes, Historical Essays^ 204, 214. 

6 Constitutional Government in the United States, 70. 

7 First enunciated by James Wilson in 1785, recently advocated by 
President Roosevelt, and stated as follows : ' ' That when a subject has 
been neither expressly excluded from the regulating power of the Feder- 
al Government, nor expressly placed within the exclusive control of the 
States, it may be regulated by Congress if it be, or become, a matter the 
regulation of which is of general importance to the whole nation, and at 
the same time a matter over which the States are, in practical fact, unable to 
exercise the necessary controlling power. ' ' Willoughby, Constitutional Law, 
I. 47. 



13] INTRODUCTION 13 

was that every executive officer in high position was a steward 
of the people bound actively and affirmatively to do all he 
could for the people, and not to content himself with the nega- 
tive merit of keeping his talents undamaged in a napkin. I 
declined to adopt the view that what was imperatively necessary 
for the Nation could not be done by the President unless he 
could find some specific authorization to do it. My belief was 
that it was not only his right but his duty to do anything that 
the needs of the Nation demanded unless such action was for- 
bidden by the Constitution or by the laws. Under this inter- 
pretation I did and caused to be done many things not pre- 
viously done by the President and the heads of the departments. 
I did not usurp power but did greatly broaden the use of execu- 
tive power. In other words, I acted for the public welfare, I 
acted for the common well being of all our people, whenever 
and in whatever measure was necessary, unless prevented by 
direct constitutional or legislative prohibition, " ^ 

Koosevelt's theory of executive power is disputed, however, 
by equally eminent authority. Senator Rayner, one of the 
leading constitutional lawyers of his time, contended that the 
clause dealing with the executive power relates simply to the 
distribution of governmental functions, and should not be con- 
sidered as a grant of power at all.^ Professor Goodnow says that 
the holder of executive power "is for the most part to exercise 
the powers which have clearly been given to him by the Con- 
stitution, and the Constitution itself is regarded as a grant of 
power not otherwise possessed, rather than as a limitation of 
power already in existence. ' ' ^° 

The Supreme Court has likewise not only repudiated the 
Wilson-Roosevelt doctrine of constitutional construction as being 
contrary to the 10th Amendment,^^ but it has also definitely re- 
futed the Roosevelt theory of executive power. "We have no 
officers in this government," says the Court, "from the Presi- 

8 Eoosevelt, Autobiography, 388-389. 

9 Speech in U. S. Senate, Jan. 31, 1907. Cong. Becord, XLI, Pt. II 
(59 Cong., 2 Sess.y, 2010. 

10 Principles of Constitutional Goveniment, 89. 

IT- Kansas v. Colorado, 206 U. S., 46, 89-90 (1907). The 10th Amend- 
ment reads as follows : ' ' The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people." 



14 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [14 

dent down to the most subordinate agent, who does not hold 
office under the law, with prescribed duties and limited author- 
ity."^^ It would therefore seem that ex-President Taft reflect- 
ed the better opinion when he stated the true view of executive 
power to be "that the President can exercise no power which 
cannot be fairly and reasonably traced to some specific grant of 
power or justly implied and included within such express grant 
as proper and necessary to its exercise. Such specific grant must 
be either in the Federal Constitution or in an Act of Congress 
passed in pursuance thereof. There is no undefined residuum 
of power which he can exercise because it seems to him to be 
in the public interest .... The grants of Executive pow- 
er are necessarily in general terms in order not to embarrass the 
Executive within the field of action plainly marked for him, 
but his jurisdiction must be justified and vindicated by affir- 
mative constitutional or statutory provisions or it does not 
exist. "13 

Altho the weight of authority upholds the contention that 
executive power in the United States is limited definitely to the 
powers enumerated in the Constitution, or clearly implied there- 
from, the interpretation of those enumerated powers is frequent- 
ly such as to give to the President an extraordinary and prac- 
tically undefined range of authority. Thus, for example, it 
has been authoritatively held that the President, under his pow- 
er ''to take care that the laws be faithfully executed," may un- 
dertake measures and exercise authority, for the enforcement 
of the law or the protection of federal rights, not specifically 
granted by Constitution or statute.^* Other of the President's 
enumerated powers, such as his power as Commander-in-Chief 

12 The Floyd Acceptances, 7 Wall., 666, 676 (1868). 

13 Our Chief Magistrate and His Powers, 139-140. 

liln re Neagle, 135 U. S., 1, 63-64, 67 (1890). Cf. dissenting opinion, 
which held that such enforcement or protection "must proceed not from 
the President, but primarily from Congress," and that if Congress does 
not pass laws in reference to such matters, "there is not the slight- 
est legal necessity out of which to imply any such power in the Presi- 
dent." lUd., 82, 83. See also view of W. W. Willoughby: "The obli- 
gation to take care that the laws of the United States are faithfully exe- 
cuted, is an obligation which is to be fulfilled by the exercise of those 
powers which the Constitution and Congress have seen fit to confer." 
Constitutional Law, II, 1151. 



15] INTRODUCTION 15 

and his power to receive and send ambassadors and ministers, 
are likewise subject to the same broad interpretation. 

If the general conception of executive power in the United 
States is somewhat vague and open to various interpretations, 
that is especially true of the nature and extent of executive 
power with regard to war. It has rightly been said that ' ' the 
domain of the executive power in time of war constitutes a sort 
of 'dark continent' in our jurisprudence, the boundaries of which 
are undetermined. ' ' ^^ 

From the very beginning of our history as a nation, states- 
men and commentators have held that since it is impossible to 
foresee what may be the exigencies or circumstances endanger- 
ing the public safety, therefore ''no constitutional shackles can 
wisely be imposed," and none are imposed upon the so-called 
war powers.^^ They have held that there are two distinct classes 
of powers under the Constitution — the peace powers, which are 
subject to the restrictions of the Constitution, and the war pow- 
ers, which are limited only by the laws and usages of nations,^^ 

15 J. W. Garner, in Bevue du Droit Public et de la Science Politique, 
XXXV, 13 (Jan. -Mar., 1918). 

16 See argument of Hamilton, in The Federalist, No. 23 (Goldwin 
Smith ed., pp. 119-120). Cf. Speech of Senator Sumner, in U. S. Senate, 
June 27, 1862 : ' ' Pray, Sir, where in the Constitution is any limitation of 
the War Powers? Let Senators who would limit them mention a single 
section, line, or phrase, which even hints at any limitation. . . . The War 
Powers are derived from the Constitution, but, when once set in motion, 
are without any restraint from the Constitution; so that what is done 
in pursuance of them is at the same time under the Constitution and out- 
side the Constitution. It is under the Constitution in the latitude with 
which it is conducted; but, whether under the Constitution or outside the 
Constitution, all that is done in pursuance of the War Powers is consti- 
tutional." Worlcs of Charles Sumner, VII, 131-132. See also Fisher, Trial 
of the Constitution, 199. 

17 " There are, then, in the authority of Congi-ess and of the Execu- 
tive, two classes of powers, altogether different in their nature and often 
incompatible with each other — the war power and the peace power. The 
peace power is limited by regulations and restricted by provisions pre- 
scribed within the Constitution itself. The war power is limited only 
by the laws and usages of nations. This power is tremendous; it is strict- 
ly constitutional, but it breaks down every barriei^ so anxiously erected 
for the protection of liberty, of property and of life. . . The powers of 
war are all regoilated by the laws of nations, and are subject to no other 
limitations." Speech of John Quincy Adams, in House of Eepresentatives, 
May 25, 1836. Cong. Debates, XII, Pt. IV (24 Cong., 1 Sess.), 4038, 4039. 



16 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [16 

and under which the rights of peace may even be disregarded 
or curtailed.^® They have asserted that the war power implies 
the right to do anything that may seem necessary to carry on 
the war successfully, even to the extent of performing otherwise 
unconstitutional acts.^^ 

These claims with regard to the extent of the war power have 
also been sanctioned by the Supreme Court. Thus, in uphold- 
ing the Confiscation Acts of the Civil War, the Court said : " If 
the statutes were not enacted under the municipal power of Con- 
gress to legislate for the punishment of crimes against the sov- 
ereignty of the United States; if, on the contrary, they are an 
exercise of the war powers of the government, it is clear they 
are not affected by the restrictions imposed by the 5th and 6th 
Amendments. ... Of course the power to declare war 

18 ' ' But in bestowing upon the Government War Powers without limi- 
tation, they [the makers of the Constitution] embodied in the Con- 
stitution all the Eights of War as completely as if those rights had been 
severally set down and enumerated; and among the first of these is the 
right to disregard the Eights of Peace." Worlcs of Charles Sumner, 
VII, 136-137. 

"It seems to be pretty well settled by the common sense of mankind 
that when a nation is fighting for its existence it cannot be fettered by all 
the legal technicalities which obtain in time of peace." Ehodes, Histor- 
ical Essays, 214. 

"What is the effect of our entering upon the war?. The effect is that 
we have surrendered and are obliged to surrender a great measure of that 
liberty which you and I have been asserting in court during all our lives; 
power over property, power over persons. This has to be vested in a 
military commander in order to carry on war successfully. ' ' Speech of 
Elihu Eoot at Saratoga Springs, Sept., 1917, quoted in Va. Law Bev.^ 
V, 179. 

19 ' ' When the Constitution conferred upon Congress the right to 
declare war, it by necessary implication conferred upon Congress the 
right to do anything that in its judgment is necessary to carry that war 
to a successful conclusion." Senator P. C. Knox, in U. S. Senate, May 
29, 1917. Cong. Becord, 65 Cong., 1 Sess., 3276. 

"I felt that measures otherwise unconstitutional might become law- 
ful by becoming indispensable to the preservation of the Constitution 
through the preservation of the nation." Letter of Lincoln to A. G. 
Hodges, Apr. 4, 1864. Nicolay & Hay, Complete Worlcs of AhraJiam 
Lincoln, II, 508. 

"If the Union and the Government cannot be saved out of this terrible 
shock of war constitutionally, a Union and a Government must be saved un- 
constitutionally. " Fisher, Trial of the Constitution, 199. 



17] INTRODUCTION 17 

involves the power to prosecute it by all means and in any man- 
ner in which war may be legitimately prosecuted. ' ' ^° Even the 
dissenting justices in this case admitted that legislation found- 
ed upon the war power is subject to quite different considera- 
tions from that based upon the municipal power of the govern- 
ment, and "is subject to no limitations, except such as are im- 
posed by the law of nations in the conduct of war . . . The 
war powers of the government have no express limitations in 
the Constitution, and the only limitation to which their exercise 
is subject is the law of nations. ' ' ^^ The same principle has also 
been upheld by the Court in other cases.^^ 

Tho authorities thus seem to agree regarding the nature 
and unlimited extent of the ''war powers" as such, the extent 
to which the exercise of these war powers is vested in the Presi- 
dent or in Congress is a matter of some dispute. For example, 
Senator Browning, during the Civil War, asserted the complete 
authority of the Executive in determining upon the measures 
necessary to meet any war emergency, denying that Congress 
had even coordinate power with the President in that respect. 
**It is not true," he said, ''that Congress may decide upon the 
measures demanded by military necessities and order them to 
be enforced. . . These necessities can be determined only by 
the military commander, and to him the Constitution has in- 
trusted the prerogative of judging of them. When the Constitu- 
tion made the President ' Commander-in-Chief of the Army and 
Navy of the United States,' it clothed him with the incidental 
powers necessary to a full, faithful and sufficient performance 
of the duties of that high office ; and to decide what are military 
necessities, and to devise and execute the requisite measures to 
meet them, is one of these incidents. It is not a legislative, but 
an executive function, and Congress has nothing to do with it. ' ' ^^ 

On the other hand, Senator Sumner disputed this claim to 
executive power, and held that the exercise of the war powers 

20 Miller V. United States, 11 Wall., 268, 304-305 (1870). 

21 Ibid., 315. 

22 Stewart v. Eahn, 11 Wall., 493, 506-507 (1870); Mechanics and 
Traders Bank v. Union Bank, 22 Wall., 276, 2&5 (1874) ; McCormick et 
al. V. Humphrei/, 27 Ind., 144, 154 (1866). 

23 Speech in U. S. Senate, June 25, 1862. Cong. Globe, 37 Cong., 2 Seaa., 
2919, 2920, 2922. 



18 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [18 

rested with Congress. "Of the pretension that all these enor- 
mous powers belong to the President, and not to Congress, I 
try to speak calmly and within bounds. I mean always to be 
parliamentary. But a pretension so irrational and unconstitu- 
tional ; so absurd and tyrannical, is not entitled to respect. Such 
a pretension would change the National Government from a 
government of law to that of a military dictator . . . " ^* 

As a matter of fact, the growth of executive power into a 
practical dictatorship in time of war, does not seem to have been 
especially feared in this country. During the Revolution, at- 
tempts were made, both in New York and Virginia, to create a 
dictator, who in the latter state was to be "invested with every 
power legislative, executive, and judiciary, civil and military, 
of life and death over our persons and over our properties," ^^ 
a proposal apparently approved by such a democrat as Patrick 
Henry.2^ Washington was actually given the power of a dictator 
on three separate occasions ;^^ while Lincoln has been referred 
to by impartial writers as exercising ' ' more arbitrary power than 
any Englishman since Oliver Cromwell," and as one whose acts 
were "worthy of a Tudor. ' ' ^^ During the recent World War, the 
necessity of making the President the supreme dictator in order 
to win the war was seriously suggested in Congress.^^ 

24 Speech in U. S. Senate, June 27, 1862. Woi^ks of Charl&a Svmner, 
VII, 139-140. But cf. Sumner's remarks in a speech at Boston, only a 
few months later (Oct. 6): "In war there is no constitutional limit to 
the activity of the executive, except the emergency. The safety of the 
people is the highest law. There is no blow the President can strike; 
there is nothing he can do against thci Eebellion, that is not constitution- 
al. Only inaction can be unconstitutional." Ihid., 217. 

25 Elliot's Debates, II, 357-361; Writings of. Thomas Jefferson, III, 
231. 

26 It was, however, bitterly opposed by Jefferson, Elliot 's Debates, 
III, 160; Writings of TJiomas Jefferson, III, 231. 

27 See resolves of Dec. 27, 1776, Sept. 17 and Nov. 14, 1777. Jour. Cont. 
Cong., VI, 1045-1046; VIII, 752; IX, 905. See also Elliot's Debates, 
III, 79. 

28 Ehodes, Historical Essays, 213 ; cf. Bryce, American Commonwealth, 
I, 65-66, 72 ; Ford, Bise and Growth of American Politics, 280. 

29 Senator Harding (Ohio) made the suggestion in August, 1917: 
"What the United States needs and what it must have if it is to win 
the war is a supreme dictator, with sole control of and sole responsibility 
for every phase of war activity, and this today means practically every 
phase of Government. Not only does this country need such a dictator. 



19] INTEODUCTION 19 

That the President can of his own accord constitutionally as- 
sume dictatorial power in time of war has been denied by the 
courts as "an extravagant assumption ; " ^° altho most au- 
thorities hold that the war powers of the President constitute 
a "latent power of discretionary action" capable of almost un- 
limited expansion in times of emergency and making the Presi- 
dent practically absolute within a certain sphere of action.^ ^ 

The exact limits of this sphere of action for the President and 
the line of demarcation between his war powers and those of 
Congress, are difficult to determine. An attempt to draw such 
a line and to delimit such a sphere of action was made in a fam- 
ous case in the following language: "Congress has the power 
not only to raise and support and govern armies, but to declare 
war. It has, therefore, the power to provide by law for carrying 
on war. This power necessarily extends to all legislation essen- 
tial to the prosecution of war with vigor and success, except 
such as interfere with the command of the forces and the conduct 
of campaigns. That power and duty belong to the President as 
Commander-in-Chief. Both these powers are derived from the 
Constitution, but neither is defined by that instrument. Their 
extent must be determined by their nature and by the principles 
of our institutions. The power to make the necessary laws is in 
Congress; the power to execute in the President. Both powers 
imply many subordinate and auxilliary powers. Each includes 
all authorities essential to its due exercise. But neither can the 
President in war more than in peace, intrude upon the proper 
authority of Congress, nor- Congress upon the proper authority 
of the President. Both are servants of the people, whose will 
is expressed in the fundamental law, ' ' ^^ Other authorities have 

in my opinion it is sure to have one before the war goes much further. . . 
The sooner it comes the better for all of us. . . . For supreme dictator 
at the present moment there is but one possible man, the President of the 
United States." N. Y. Times, Feb. 10, 1918. 

zo Jones V. Seward, 40 Barb. (N. Y.), 563, 571 (1863). 

31 Goodnow, Comparative Administrative Law, I, 32; Watson, On the 
Constitution, II, 914; Baldwin, Modem Political Institutions, 01-92; 
Channing, History of the United States, III, 513; W. A. Dunning, "The 
War Power of the President," New BepuUic, XI, 76-79 (May 19, 1917). 
For a somewhat extravagant claim as to the absolute nature of the Presi- 
dent's war powers, see remarks of Senator Lewis, in U. S. Senate, June 
30, 1917. Cong. Becord, LV, Pt. 5 (65 Cong., 1 Sess.), 4552, 4553. 

32 Ex parte Milligan, 4 Wall., 2, 139 (1866). 



20 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [20 

attempted a briefer and simpler delimitation by saying that 
"Congress regulates whatever is of general and permanent im- 
portance, while the President determines all matters temporary 
and not general in their nature. ' ' ^^ 

The main source of the President's war powers is of course 
the Constitution. Besides certain powers relating directly to 
war that are expressly conferred upon the President by that in- 
strument,^* other powers and duties are vested in him that may 
have an important bearing on the conduct of war;^^ while still 
other clauses of the Constitution not referring directly to the 
President may by necessary implication add to his war powers.^*' 
Other of the President's powers with regard to war are derived 
from international law and practise, are conferred by statute, 
or are established as a result of custom and usage. To define 
more clearly these war powers of the President, to determine 
their nature and source, and to discover the manner of their ex- 
ercise, is the purpose of this study. 

The most common forms through which the President in per- 
son exercises his powers, are by proclamations and executive 
orders, the former generally containing announcements and de- 
cisions of the widest interest and broadest scope, the latter usual- 
ly concerning matters not of such general interest. Either may 
be issued as a result of express or implied statutory authoriza- 
tion, or by virtue of the President's constitutional position as 
Chief Executive. The great increase in the number of these 
proclamations and executive orders issued in war time is also 
an excellent indication of the growth of the war powers of the 
Executive over his power in time of peace. 

- Other forms of presidential action include rules and regula- 
tions issued under statutory authority or by virtue of the Presi- 
dent's constitutional power; directions, instructions, or orders 
to heads of departments and other agencies; and decisions on 

33 Fairlie, National Admimstration of the United States, 33 ; cf. Von 
Hoist, Constitutional Law of the United States, 193. 
34 Art II, Sec. 2, CI. 1 (commander-in-chief). 

35 Art I, Sec. 7, CI. 2, 3 (sign and veto bills); Art II, Sec. 1, CI. 8 
(oath of oflS.ce) ; Sec. 2, CI. 1 (power of pardon) ; Sec. 2, CI. 2 (power 
with regard to foreign relations and appointment of oflScers) ; Sec. 3 
(recommend measures, call special session, and execute the laws). 

36 Art. I, Sec. 9, CI. 2 (habeas corpus) ; Art IV, See. 4 (guaranty of 
republican government and of protection). 



21] INTRODUCTION 21 

matters requiring his approval or coming to him through ap- 
peals from the decisions of subordinate officials. Finally, the 
commissioning of officers appointed by him with or without the 
consent of the Senate, the recommendation of measures to Con- 
gress, and the signing or vetoing of bills, may be included among 
the means through which the President exercises his authority, 
and which must be considered in connection with this study of 
his powers.^'^ 

Not all of the acts required of the President can possibly be 
performed by him personally, and the courts have definitely 
recognized that he may act through the heads of departments. 
' ' The President speaks and acts through the heads of the several 
departments in relation to subjects which appertain to their 
respective duties, ' ' and the acts of the heads of departments are 
* ' in legal contemplation the act of the President. ' ' ^^ 

It has also been held that heads of departments may in turn 
act through subordinate officials in the departments;^^ but the 
question as to how far this delegation of power may be carried 
and still be considered the act of the President seems as yet to 
be unsettled by the courts. It has been pointed out that most 
orders and regulations are in fact prepared by subordinate of- 
ficials in the several departments, altho issued in the name 
of the head of the department or in the name of the President; 
and also that in some cases, and especially during the recent war, 
such orders and regulations have been issued by subordinate of- 
ficials, acting by authority of the head of the department, in 
matters where the statutes vested the power in the President.*" 
This practise, undoubtedly becoming more common, opens up a 
vast new field for a study of the exercise of Presidential pow- 
ers. Since, however, as has been suggested, it is still an open 
question how far such exercise of authority by subordinate of- 
ficials can be considered as the act of the President, this study 
makes no attempt to include any exercise of power but by the 
President himself, or for which he may clearly be immediately 
responsible. 

37 Cf. Fairlie, National Administration of tJw United States, 41-42. 

38 Wilcox V. Jackson, 13 Pet, 498, 513 (1839) ; United States v. Eliason, 
16 Pet., 291 (1842). 

39 United States v. Warfield, 170 Fed. Eep., 43 (1909). 

40 J. A. Fairlie, in Michigan Law Bev., XVIII, 188 (Jan., 1920). 



I. Powers Relating to the Beginning of War 



CHAPTER II 

CONTROL OF FOREIGN RELATIONS 

The function of managing the foreign relations may be classi- 
fied into two distinct branches: (1) the power of intercourse, 
intercommunication, and negotiation; (2) the power of entering 
into formal or binding international compacts.^ The latter pow- 
er is shared by the President with the Senate,^ but the former 
belongs exclusively to the President. ' * The President is the sole 
organ of the nation in its external relations, and its sole repre- 
sentative with foreign nations. ' ' ^ 

Altho diplomatic negotiations and intercourse are regular- 
ly conducted through the Department of State, the acts of that 
department are in legal contemplation the acts of the President,* 
and, in fact, the Department of State has generally been recog- 
nized as having a special status, as being more directly sub- 
ject to the control of the President than any other department. 
This was clearly set forth by Senator John C. Spooner in a 
speech before the United States Senate on January 23, 1906, 
when he said: "The act creating the Department of State in 
1789, was an exception to the acts creating the other Depart- 
ments of the Government. . . . It is a Department which 
from the begining the Senate has never assumed the right to 
direct or control, except as to clearly defined matters relating 
to duty imposed by statute and not connected with the conduct 
of our foreign relations. We direct all the other heads of De- 

iPomeroy, Constitutional Law (Bennett's ed.), 564; Fairlie, National 

Achnirdstration of the United States, 29-30. 

2 Constitution^ Art. II, Sec. 2, CI. 2. 

3 John Marshall, in House of Eepresentatives, Mar. 7, 1800. Annals of 
Cong., 6 Cong., 613; cf. Pomeroy, op. cit., 564; Corwin, The President's 
Control of Foreign Belations, 33. 

* Jones V. United States, 137 U. S., 202, 217 (1890); Crandall, Treaties: 
Their MaMng and Enforcement (2nd ed.), 93. 

25 



26 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [26 

partments to transmit to the Senate designated papers or in- 
formation. We do not address directions to the Secretary of 
State. We direct requests to the real head of that Department, 
the President of the United States, and, as a matter of courtesy, 
we add the qualifying words, 'if in his judgment not incompat- 
ible with the public interest. ' " ^ 

This control which the President exercises over our foreign 
relations has, with regard to his war power, several principal 
phases. In the first place, it gives the President the whole pow- 
er of initiating and formulating the foreign policy of the govern- 
ment, and virtually of committing the nation to its execution. 
Jefferson expressed this idea in a letter to M. Genet, November 
22, 1793: *'He (the President) being the only channel of com- 
munication between this country and foreign nations, it is from 
him alone that foreign nations or their agents are to learn what 
is or has been the will of the nation ; and whatever he communi- 
cates as such, they have the right, and are bound to consider as 
the expression of the nation. ' ' ^ Ex-President Taft, referring 
to the President's power of conducting the diplomatic corres- 
pondence, expressed the same thought in the following words: 
"He is bound in such correspondence to discuss the proper con- 
struction of treaties. He must formulate the foreign policies 
of our government. He must state our attitude upon questions 
constantly arising. While strictly he may not bind our govern- 
ment as a treaty would bind it, to a definition of its rights, still 
in future discussions foreign Secretaries of other countries are 
wont to look for support of their contentions to the declarations 
and admissions of our Secretaries of State in other controversies 
as in a sense binding upon us. There is thus much practical 
framing of our foreign policies in the executive conduct of our 
foreign relations. ' ' ^ President Wilson has put the case for the 
President even more strongly : ' ' One of the greatest of the Presi- 
dent 's powers (is) . . . his control, which is very absolute, 
of the foreign relations of the nation. The initiative in foreign 
affairs, which the President possesses without any restriction 
whatever, is virtually the power to control them absolutely. The 

5 Cong. Becord, 59 Cong., 1 Sess., 1420 j cf. Ogg & Beard, National 
Governments and the World War, 97. 

6 Am. State Papers, For. Bel., I, 184. 

7 Our Chief Magistrate and His Powers, 113. 



27] CONTEOL OF FOREIGN RELATIONS 27 

President cannot conclude a treaty with a foreign power without 
the consent of the Senate, but he may guide every step of dip- 
lomacy, and to guide diplomacy is to determine what treaties 
must be made, if the faith and prestige of the government are 
to be maintained. He need disclose no step of negotiation until 
it is complete, and when in any critical matter it is completed 
the government is virtually committed. Whatever its disinclina- 
tion, the Senate may feel itself committed also. ' ' ^ 

This power of the President has also been definitely upheld by 
the Supreme Court,^ and there can thus be no question as to his 
right and power under ordinary circumstances to initiate and 
formulate such diplomatic policies as he may deem proper, and 
virtually commit Congress and the country to their execution. 
It is also freely conceded by authorities that the Executive De- 
partment, by means of this branch of its power over foreign re- 
lations, "holds in its keeping the safety, welfare and even per- 
manence of our internal and domestic institutions. ' ' ^° This 
fact, that policies leading to disturbed relations with other pow- 
ers and even endangering the peace and safety of the country 
may be, and in fact have been, adopted at the will of the Execu- 
tive, has led to considerable discussion as to the propriety of en- 
trusting the sole responsibility for these matters to the President. 
The question has been raised whether, in view of the power of 
Congress to declare war, the President is under a constitutional 
obligation not to formulate and prosecute such diplomatic pol- 
icies as might incur the risk of war, or whether, in case grave 
consequences are feared, he should not at least advise and con- 
sult with Congress. 

The idea that the President is under some such obligation has 
been brought forward on several occasions. It was raised in 
1826, when the proposal of President Adams to send representa- 
tives to the Panama Congress^^ aroused the opposition of such 
senators as Hayne, Woodbury, White, Van Buren, and Benton, 

s Constitutional Government^ 77-78; See also President Wilson's let- 
ter to Senator Fall, Dec. 8, 1919. hifra, 35-36; S. E. Baldwin, in Yale 
Rev., IX, 407. 

9 Foster v. Neilson, 2 Pet., 253, 309 (1829); Williams v. SuffolJc In- 
surance Company, 13 Pet., 415, 420 (1839). 

10 Pomeroy, op. cit., 565. 

11 Eichardson, Messages and Papers of the Presidents, II, 318-320. 



28 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [28 

largely on the ground that this Congress was to be really a con- 
gress of belligerents, and that the United States, by taking part, 
would compromise its neutrality, become involved in ' ' entangling 
alliances, ' ' and incur the risk of war with Spain,^^ Their senti- 
ments were expressed by Van Buren (later President), when he 
said: "It is, then, the design of the Executive to enter into an 
agreement at the Congress . . . that if the powers of Eur- 
ope make common cause with Spain, or otherwise attempt the 
subjugation of Spanish America, we shall unite with the latter, 
and contribute our proportion to the means necessary to make 
the resistance effectual; and further, that we shall bind our- 
selves, at that Congress, as to the manner in which we shall re- 
sist any attempts, by the European powers, to colonize any por- 
tion of this continent." Such a proposal he characterized as 
"a measure by which the the peace of the country is to be ex- 
posed to a contingency beyond the control of our Government — 
by which the great question of peace or war will be taken from 
the Representatives of the people — by which, instead of re- 
taining that freedom of action which we now possess, we shall 
bind ourselves, in a certain event, to pursue a certain course, 
whatever those, to whom the Government of the country may 
have been committed, shall think the honor or interest of the 
country may require." " 

In the House of Representatives there was likewise consider- 
able opposition to the President's proposal on the same grounds. 
Thus Mr. Rives spoke of the result of our participation in the 
Congress as "most probably the adoption of measures endanger- 
ing the future peace of the country, ' ' and of the President 's dec- 
laration with regard to foreign interference in the affairs of 
South America as "a conditional, or, to use a more diplomatic 
phraseology, a provisional declaration of war ; " ^* while Mr. 
Hamilton remarked, "We have become, at the exclusive will 
of the President, the arbitrator of the New World, and, in that 
character, have sent bullying protests to the old. The Cabinet 
has, in our name, made two solemn contracts, to go to war in two 
contingencies, without, 'as a matter of preliminary advisement,' 
even condescending to consult us." " Others spoke to the same 

12 Benton's Debates, VIII, 423, 425, 435, 436, 441, 446, 450, 462. 
i^IMd., 446-447. 

14 lUd., IX, 107, 111. 

15 Ibid., 136. 



29] CONTROL OF FOREIGN RELATIONS 29 

effect, and an attempt was even made to instruct the envoys to 
the Congress by attaching conditions to the resolution provid- 
ing for the mission.^^ 

These conditions were vigorously opposed in the House by 
Webster and others as an invasion of the power of the President 
to instruct ministers/'' and were eventually voted down.^^ There 
was, however, considerable sentiment to the effect that while 
there was no power in the House to issue instructions either to 
the President or to ministers, still the House, through its power 
of granting or refusing appropriations, might exercise a re- 
straint upon foreign diplomatic intercourse — a power which 
should, however, be exercised only when the policy of the Execu- 
tive was clearly tending to involve the country in war,^^ Sena- 
tor Johnston (of Louisiana) probably best summed up the posi- 
tion of the President and his supporters when he said: "There 
is nothing peculiar in the present case. The President has, at 
all times, the power to commit the peace of the country, and 
involve us in hostilities, as far as he has power in this case. To 
him is confided all intercourse with foreign nations. To his dis- 
cretion and responsibility is intrusted all our delicate and dif- 
ficult relations: all negotiations and all treaties are conducted 
and brought to issue by him, ' ' 2° Even Van Buren, who had 
spoken against the mission, admitted that, no matter what ac- 
tion the Senate or Congress might take, the President could still 
constitutionally provide for such mission on his own author- 
ity,2^ 

Whether or not the Panama mission of 1826 actually carried 
with it the dangers attributed to it by its opponents may still 

16 Benton's Debates, IX, 91, 

17 Ibid., 94-95, 101, 115, 150. 

18 Ibid., 217, 218. 

19 See, for example, remarks of Mr. Thompson, Ibid., 182, 

20 Ibid., VIII, 439. 

21 Ibid., 441, "But though neither Congress nor the court may direct 
the President in the discharge of his constitutional powers, yet either the 
Senate or the House separately, or both concurrently, may pass resolutions 
expressive of their desires in relation to questions of an iaternational 
character, and the President may give such resolutions any weight he 
chooses, notwithstanding that they have no legal effect. Indeed, it is a part 
of the President's discretion to pay heed to such resolutions or not, as he 
elects." Corwin, The President's Control of Foreign Belations, 40, 



30 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [30 

be a matter of some dispute, but is of little consequence to this 
study. The important point to be noted, on which both advo- 
cates and opponents of the mission were agreed, is that, if it was 
within the power of the President alone to decide upon a cer- 
tain diplomatic policy, such as this mission, it was likewise 
within his power, and his alone, to determine whether or not its 
consequences might involve the peace and safety of the country. 
The President having made his decision and carried out his 
policy. Congress and the country would be committed to it, re- 
gardless of consequences. 

This power of the President has been demonstrated in actual 
practise again and again. During a period of about twenty-five 
years (1828-1849), the Cuban policy of the Executive was con- 
sistently friendly to Spain and a guaranty of Spanish sover- 
eignty; after the Mexican War that was changed to a policy 
whose chief end was the acquisition of Cuba by the United 
States, and in the development of which American diplomacy 
has been characterized as "aggressive and intolerant;" while 
during the period after the Civil War, it was again changed to a 
policy of commercial and humanitarian interest, culminating 
finally in actual intervention and war.^^ 

President Grant's handling of the Virginius incident in 1873, 
President Cleveland's of the Venzuelan affair of 1895, and Presi- 
dent Wilson's of the Mexican situation throughout the entire 
course of his administration, illustrate the power of the Presi- 
dent both to bring on and to avert diplomatic crises.^^ Mention 
need only be made of such events as Washington's neutrality 

22 Benton, Internatioruil Law mid Diplomacy of the Spanish-Ameri- 
can War, 14-20,- Ehodes, History of the United States, II, 350-354. See 
message of President Cleveland to Congress, Dee. 7, 1896; and President 
McKinley's statement of the grounds for intervention, in his message of 
Apr. 11, 1898. Eichardson, op. cit., IX, 719-721; X, 147. 

23 Ehodes, op. cit., VII, 29-36; Chadwick, Belations of the United 
States and Spain: Diplomacy, 314-357. "In an hour, by this executive act 
(Cleveland's action in the Venezuelan affair), we are brought face to face 
with a question of war with the leading power in Europe, and the danger 
of it passes away through a diplomatic correspondence, for the issue of 
which the President was again alone responsible. The very ground of our 
interference in this quarrel of Venezuela — what was it but a doctrine 
proclaimed, and indeed invented, by a President of the United States? The 
Monroe Doctrine has laid down the law for our hemisphere, and it was the 
single act of the executive department." Baldwin, Modern Political In- 
stitutions, 105-106. 



31] CONTROL OF FOREIGN RELATIONS 31 

policy, the Monroe Doctrine, the annexation of Texas, the Mexi- 
can War, the Alabama Claims settlement, the acquisition of the 
Panama Canal, the Big Stick doctrine, our entrance into the 
war with Germany — ''all these, and many more," says Cor- 
win, "must be set down to the credit of executive leadership in 
the field of foreign relations. ' ' ^* 

It may therefore be asserted that the President, through his 
control of diplomatic intercourse, holds in his keeping the peace 
and safety of the United States, that he may initiate such dip- 
lomatic policies and so conduct diplomatic negotiations as to 
force the country into a war, "without any possibility of hin- 
drance from Congress or the Senate. ' ' ^^ 

A second phase of the President's control of foreign relations 
that should be considered in this connection is his power to rec- 
ognize the belligerency or independence of new states and gov- 
ernments. This power of recognition is not expressly granted 
by the Constitution, but is implied from the general power to 
enter into diplomatic relations with foreign countries through 
the making of treaties and the exchange of accredited envoys.^^ 
It is not conferred in terms upon any one department of the 
government, but is now generally conceded as belonging to the 
Executive.^^ In practise, recognition has always been extended 
as the exclusive act of the President. ^^ 

24 The President 's Control of Foreign Belations, 126 ; cf. Ford, Bise 
and Grovjth of American Politics, 279, 280. 

25 Fairlie, National Administration, 30; Pomeroy, Constitutional Law, 
565. 

26 Constitution, Art. II, Sec. 2, CI. 2 ; Sec. 3 ; cf. Taft, Our Chief Mag- 
istrate and His Powers, 112-113 ; Story, Commentaries on the Constitution, 
II, 370-371. For a more extended discussion of this question, see an ar- 
ticle by the writer, "The Power of Recognition," in Am. Jour. Int. Law, 
XIV, 519-539 (Oct., 1920). 

27 In several cases the courts have declared the power of recognition 
to be vested in the "political department" of the government, without 
indicating clearly whether the executive or legislative department, or both, 
was meant. Bose v. Svmely, 4 Cr., 241 (1801) ; Gelston v. Soyt, 3 Wheat., 
246, 324 (1818); Foster v. Neilson, 2 Pet., 253, 307 (1829)'; Jones v. 
United States, 137 U. S., 202, 212 (1890). However, in other cases, both 
the language and tone of the decisions are such as to show that the exe- 
cutive department is meant. United States v. Mutchings, 2 Wheeler 's Crim- 
inal Cases, 543, cited in Sen. Doc. No. 56, 54 Cong., 2 Sess., 24 ; Williams 
V. Suffolk Insurance Company, 13 Pet., 415, 420 (1839) ; Eennett v. Cham- 



32 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [32 

New states generally come into existence by breaking off from 
an actually existing state, and altho recognition even in such 
cases is " a normal act, quite compatible with the maintenance of 
peaceful intercourse with the mother-country, ' ' provided the 
new community has actually won its contest and successfully 
maintained its independence and separate existence,^^ author- 
ities agree that premature recognition is a wrong done to the 
parent state, that it amounts to an act of intervention, and may 
properly be considered by the parent state as a cause for war.^" 
Through the exercise of this power the President is thus upon 
occasion enabled to determine the question of peace or war for 
the United States. 

hers, 14 How,, 38, 46, 50-51 (1852) ; United States v. TrumhuU, 48 Fed. 
Eep., 99, 104 (1891) ; The Stata, 56 Fed. Eep., 505, 510 (1893)! 

See also Senate Dociiment No. 56, 54 Cong., 2 Sess., containing a report 
of the Senate Committee on Foreign Relations, presented to the Senate Jan. 
11, 1897, in which, after an exhaustive investigation into the whole sub- 
ject of recognition, it was held that the power of recognition rested prop- 
erly with the President. In 1864, the Mexican situation brought about 
the passage of a House resolution declaring that ' ' Congress has a con- 
stitutional right to an authoritative voice in declaring and prescribing the 
foreign policy of the United States, as well in the recognition of foreign 
powers as in other matters ; ' ' and in 1896, a concurrent resolution was 
passed recognizing a state of war in Cuba and offering the good offices of 
the United States for the recognition of Cuban independence. These reso- 
lutions were ignored by Presidents Lincoln and Cleveland, respectively, on 
the ground that recognition was a matter for the Executive alone. Cong. 
Gloie, XXXV, Pt. I, 65, 67; Latane, America as a World Power, 9. 

The joint resolution of 1898 authorizing intervention in Cuba, declared 
"That the people of the island of Cuba are, and of right ought to be, 
free and independent ; ' ' but authorities hold that this is a mere state- 
ment of policy and not to be regarded as a claim by Congress to the pow- 
er of recognition. Benton, International Law and Diplomacy of the Span- 
ish-Amei-ican War, 99; Corwin, The President's Control of Foreign Bela- 
tions, 80-81. 

Senator King (Utah) proposed a Senate resolution, May 23, 1919, for the 
recognition of the Omsk government of Russia, which seems to have been 
buried in committee. Cong. Becord, 66 Cong., 1 Sess. (May 23, 1919), 154, 

28 For the manner in which recognition has been extended to other 
countries by the United States, see Senate Document No. 40, 54 Cong,, 2 
Sess. 

29 Lawrence, Principles of International Law (6th ed,), 88, 

^olbid.; Hall, International Laio (6th ed,), 83; Moore's Digest of 
International Law, I, 73, 



33] CONTROL OF FOREIGN RELATIONS 33 

The serious responsibility thus resting upon the President 
has been recognized on several occasions. When the South 
American provinces were clamoring for recognition in 1817, 
President Monroe, altho sympathetic with their aspirations, 
evidently feared possible complications with Spain,^^ and in 
spite of pressure from Clay and his following in Congress,^^ de- 
clined to recognize these new states until he was satisfied that 
Spain would not resent the act with war.^^ 

President Jackson, curiously enough, was likewise extremely 
cautious about arousing the hostility of Mexico through a pre- 
mature recognition of Texas, declined to receive the Texan com- 
missioners sent to Washington in March, 1836, to ask for rec- 
ognition,^* and apparently was unwilling to take the sole re- 
sponsibility in cases involving possible international complica- 
tions. Referring to the Texas situation in his message of De- 
cember 21, 1836, he spoke of the acknowledgment of a new state 
as independent as ''at all times an act of great delicacy and re- 
sponsibility, but more especially so when such state has forcibly 
separated from another of which it had formed an integral part 
and which still claims dominion over it. A premature recognition 
under these circumstances, if not looked upon as a justifiable 
cause of war, is always liable to be regarded as proof of an un- 
friendly spirit to one of the contending parties." He therefore 

31 See memorandum of questions submitted to his Cabinet, Oet. 25, 1817. 
Writings of James Monroe, VI, 31. 

32 Clay in 1817 mounted what John Quiney Adams called * ' his South 
American great horse," and by means of resolutions proposed by himself 
and his followers, kept the question of recognition of these provinces con- 
stantly before Congress from 1818 to 1822, in an effort to force the hand 
of the President. Memoirs of John Quiney Adams, IV, 28; Annals of 
Cong., 15 Cong., 1 Sess., II, 1468, 1569, 1646, 1652, 1655; ibid., 16 Cong., 
1 Sess., 11, 2223, 2229-2230; 2 Sess., 1071, 1077, 1081, 1091-1092; ibid., 
17 Cong., 1 Sess., I, 854, 982. 

33 ' ' The delay which has been observed in making a decision on this 
important subject will, it is presumed, have afforded an unequivocal proof 
to Spain, as it must have done to other powers, of the high respect enter- 
tained by the United States for her rights and of their determination not to 
interfere with them. . . It may be presumed that the successful progress of 
the revolution through such a long series of years. . . will reconcile the parent 
country to an acommodation with them on the basis of their unqualified inde- 
pendence. " Message to Congress, Mar. 8, 1822. Eichardson, op. cit., II, 
116-118. 

34 Eeeves, American Diplomacy under Tyler and Folic, 78. 



34 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [34 

announced that he considered it "with the spirit of the Con- 
stitution and most safe," that the power of recognition, when 
probably leading to war, should be exercised "with a previous 
understanding with that body by whom alone war can be de- 
clared, and by whom all provision for sustaining its perils must be 
furnished. ' ' ^^ 

The Senate Committee on Foreign Relations, in its report 
of January 11, 1897, already mentioned,^** altho strongly up- 
holding the President's right to the power of recognition, em- 
phasized also the dangers involved in the exercise of that power, 
since the older nation might regard such recognition as a cause 
of war. The question whether a nation should recognize an- 
other, and thus risk going to war with a third, was stated to be 
largely a question of expediency, of which the Executive was 
the best qualified to judge, tho it was added that "if recogni- 
tion of such independence is liable to become a casus 1)611% with 
some foreign power, .... it is most advisable as well 
as proper for the Executive first to consult the legislative branch 
as to its wishes and postpone its own action if not assured of 
legislative approval. If, on the other hand, the Executive did 
not consider that the time had arrived to act, expressions of 
opinion by the legislature should be made with some caution." 

It seems therefore to be the general consensus of opinion that, 
while the power of recognition belongs properly to the President, 
it is a power that may easily involve serious complications with 
foreign nations, and in such cases should be exercised with due 
regard for the wishes of that branch of the government whose 
function it is to declare war. It should be noted, however, that 
any action of Congress would be merely advisory, that the whole 
power rests with the President alone. "It is the proper prov- 
ince of the Executive to refuse to be guided by a resolution on 
the part of the legislature, if, in his judgment, to do so would 
be unwise. The legislature may express its wishes or opinions, 
but may not command. " ^^ 

35 Eichardson, op. cit., Ill, 266-267. 

36 Senate Document No. 66, 54 Cong., 2 Sess., 2. 

37 Willoughby, Constitutional Law, I, 462 ; cf. Corwin, op. cit., 82. "It is 
not, indeed, a power likely to be abused, though it is pregnant with conse- 
quences often involving the question of peace or war. And, in our own short 
experience, the revolutions in France, and the revolutions in South America, 
have already placed us in situations to feel its critical character, and the 



35] CONTROL OF FOREIGN RELATIONS 35 

From his power to receive and send accredited envoys, the 
President also derives the power to withdraw the diplomatic 
representatives of the United States at his pleasure, or dismiss 
those of foreign powers, and thus sever all relations with any- 
particular country — a power which a distinguished authority 
has said ''may be so exercised as to produce most momentous 
results. " ^® 

This power to sever diplomatic relations is a power that has 
always been considered as peculiarly within the province of the 
President, and until very recently no attempt was ever made 
by Congress to assert any authority in that respect. However, 
the unsettled condition of affairs in Mexico, and the opinion of 
some people that President Wilson was being too patient in his 
handling of Mexican affairs, led to the introduction by Senator 
Fall (New Mexico), on December 3, 1919, of a concurrent reso- 
lution requesting the President to withdraw recognition from 
the Carranza Government and 'Ho sever all diplomatic relations 
now existing between this Government and the pretended Gov- 
ernment of Carranza. ' ' ^^ 

Tho this resolution clearly went oeyond the traditional 
view that the President alone has the entire responsibility for 
deciding whether or not diplomatic relations should at any time 
be severed, there seemed to be a disposition on the part of the 
Foreign Relations Committee of the Senate to recommend it 
favorably and push it to a vote. President Wilson, however, 
in a letter of December 8, 1919, to Senator Fall, vigorously as- 
serted the power and responsibility of the Executive in this mat- 
ter, expressing himself as follows : "I should be gravely con- 
cerned to see any such resolution pass the Congress. It would 
constitute a reversal of our constitutional practice, which might 

necessity of having at the head of the government an executive of sober 
judgment, enlightened views, and firm and exalted patriotism. ' ' Story, Com- 
mentaries, II, 371. 

38 Burgess, Political Science and Comparative Constitutional Law, II, 251. 
Hamilton did not seem to appreciate th© tremendous possibilities in the ex- 
ercise of this power, especially to receive ministers, for he passed it by with 
this brief comment : ' ' This, though it has been a rich theme of declamation, 
is more a matter of dignity than of authority. It is a circumstance which will 
be without consequence in the administration of the government. ' ' The Fed- 
eralist^ No. 68 (Goldwin Smith ed., pp. 383-384). 

39 See text of resolution in N. Y. Times, Dec. 4, 1919. 



36 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [36 

lead to very great confusion in regard to the guidance of our 
foreign affairs. I am convinced that I am supported by every 
competent constitutional authority in the statement that the 
initiative in directing the relations of our Government with 
foreign Governments is assigned by the Constitution to the 
Executive, and to the Executive only. Only one of the Houses 
of Congress is associated with the President by the Constitution 
in an advisory capacity, and the advice of the Senate is provided 
for only when sought by the Executive in regard to explicit 
agreements with foreign Governments and the appointment of 
diplomatic representatives who are to speak for this Govern- 
ment at foreign capitals. The' only safe course, I am confident, 
is to adhere to the prescribed method of the Constitution. We 
might go very far afield if we departed from it. ' ' ^° 

Upon receipt of this letter. Senator Lodge, chairman of the 
Senate Committee on Foreign Relations, immediately announced 
that the committee would not push the Fall resolution, but would 
leave the entire responsibility for the Mexican situation with the 
President, thus virtually acknowledging the soundness of the 
President's position.*^ 

The breaking of diplomatic relations, while not in itself an act 
of war, and not necessarily resulting in war, is meant to be a 
marked protest and generally does lead to war.*^ President Wil- 
son thus understood very well, as did the whole country, that his 
action, on February 3, 1917, in dismissing the German ambassa- 

40 N. Y. Times, Dec. 9, 1919. 

41 " Of course the committee will do nothing now. The President de- 
sires complete responsibility for the Mexican situation to rest on him. Let it 
rest there. We desired only to assist him ; he does not wish us to do so. He 
does not even allow us to express our support or make a suggestion. The 
committee will not again consider the resolution. We are through. ' ' State- 
ment of Senator Lodge. N. Y. Times, Dee. 9, 1919. 

42 See T. S. Woplsey, ' ' The Beginning of War, ' ' Proc. Am. Pol. Sci. 
Assn., I, 54-68, esp. 57-60. 

Diplomatic relations with Brazil were severed in 1827 and with Mex- 
ico in 1858, but in each case were very shortly restored without any in- 
tervening complications; with Mexico they were broken off also in 1836, 
and continued broken for three years, without war ; relations between 
Turkey and the United States were severed Apr. 20, 1917, but war was 
never declared between the two countries. Eeeves, American Diplomacy 
undei- Taylor and Folic, 76; Moore's Digest, VII, 103-105; N. Y. Times 
Current Ei-st. Mag., VI, 437. 



37] CONTROL OF FOREIGN RELATIONS 37 

dor to the United States and recalling Ambassador Gerard from 
Berlin, was very likely the first step towards actual war, aL 
tho in his address to Congress on that date he expressed him- 
self as hopeful that further complications might be avoided.*^ 

Finally, the President may to a considerable extent determine 
questions relating to the peace of the United States through his 
power to enter into so-called executive agreements with other 
powers. The Constitution requires that treaties can only be made 
by the President by and with the advice and consent of the Sen- 
ate,** but "treaties" by no means include every sort of interna- 
tional arrangement entered into. Agreements of various sorts, 
some concerning only minor and routine matter, others on mat- 
ters of considerable importance and delicacy, are frequently 
made by the President without the knowledge or consent of the 
Senate, and are by long practise considered to be within the 
range of his authority.*^ Such agreements, altho not a part 
of the "supreme law of the land," as are treaties, nevertheless 
are considered binding upon the administration making them, 
but not upon succeeding administrations.*" As a matter of fact, 
most of these agreements covering matters of any considerable 
importance have been respected by the successors of those mak- 
ing them, and have by general consent come to have the effect of 
a settled law. 

Such executive agreements take the various forms of a protocol, 
a modus vivendi, an exchange of notes or memoranda, or a mere 
"gentlemen's agreement," and are entered into by the Presi- 
dent by virtue of his power as Commander-in-Chief or of his 
diplomatic powers.*^ As an example of executive agreements 
based upon the first class of powers may be mentioned the agree- 
ment of 1817 with Great Britain for the limitation of naval 
armaments on the Great Lakes, 

This agreement was brought about by an exchange of notes 

43 See text of address in MeKinley, Collected Materials for the Study 
of the War (1st ed.), 11-12. 

44 Art, II, See. 2, 01. 2, 

45 J. B. Moore, in Fol. Sci. Quar., XX, 388-390 j Ogg & Beard, Na- 
tional Governments and the World War, 102, 

46 Butler, The Treaty-Making Poiver of the United States, II, 370; 
Angarica v. Bayard, 127 U. S., 251, 261 (1888). 

47 Corwin, The President 's Control of Foreign Relations, 116. 



38 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [38 

between the British minister at Washington (Mr. Bagot) and the 
Acting Secretary of State (Mr. Rush), and provided that neither 
party should keep in service on Lakes Champlain and Ontario 
more than one, and on Lake Erie and the upper lakes more than 
two armed vessels, none of these to be armed with more than one 
cannon, and all other armed vessels of both parties to be dis- 
mantled.^^ Altho President Monroe nearly a year later submit- 
ted the arrangement to the Senate for its approval,*^ this action 
was merely perfunctory, since the agreement had become ef- 
fective immediately after the date of the original exchange of 
notes (April 28-29, 1817), through orders issued by the Secretary 
of the Navy to the naval officers commanding on the Great 
Lakes.^° The arrangement was definitely undertaken as a meas- 
ure to preserve the peace between the two countries,^^ and re- 
mains to this day as a striking example of what may be done 
towards that end by purely Executive action. 

Another agreement between these two countries of somewhat 
similar import with respect to armament was entered into by 
means of a protocol signed at London, December 9, 1850, by the 
United States minister (Abbott Lawrence) and Lord Palmer- 
ston, under which the British government ceded Horseshoe Reef 
in Lake Erie to the United States, the latter agreeing to erect a 

48 Am. State Papers, For. Bel., IV, 205-206. 

49 Message to the Senate, Apr. 6, 1818. Ibid., 202. John Quincy Adams 
says on Jan. 14, 1818, that the President did not think it necessary 
to communicate the arrangement to Congress. Memoirs, IV, 41. The 
Senate gave its approval Apr. 16, 1818, following which the President 
issued a formal proclamation April 28, announcing that the agreement 
was in effect. Am. State Papers, For. Bel., IV, 207. 

50 The terms of the agreement were communicated by Mr. Rush to 
Secretary of the Navy Crowninshield on Apr. 30, 1817, and the necessary 
orders were issued by the latter May 2. Hid., 206-207. 

51 "The President (Madison), being satisfied that, if each nation 
should maintain on the lakes a naval force, it would esjDose both to con- 
siderable and useless expense, while it would multiply the risks of col- 
lision between them, instructed Mr. Adams, shortly after the peace, to 
make the proposals. . .in the hope that it might be carried into immediate 
effect." Monroe to Bagot, Aug. 2, 1816. IMd., 203. "This arrange- 
ment for mutual disarmament on the lakes has undoubtedly been the great- 
est single factor in the continviance of peaceful relations between the 
United States and Great Britain during the last one hundred years."' 
Updyke, Diplomacy of the War of 181S, 465-466. 



39] CONTROL OP FOREIGN RELATIONS 39 

light-house but to maintain no fortifications. The agreement 
was ratified by an exchange of notes in London, February 10, 
1851, with no formal ratification on the part of either country, 
and the light-house was erected in 1856 upon the appropriation 
of the necessary funds by Congress.^^ 

In 1859 a dispute between the United States and Great Britain 
over the island of San Juan off the Pacific coast, which threat- 
ened to cause serious difficulty between the two countries, was 
settled by an agreement, reached through an exchange of notes, 
for joint military occupation of the island.^^ This arrangement 
which continued until the entire island was given over to the 
United States under an arbitral decision in 1873, was upheld by 
the courts as a proper exercise of Executive authority, even to 
the extent of modifying, in the interest of peace, existing sta- 
tutes for the government of the disputed territory.^* 

Perhaps the most remarkable exercise of the President 's power 
to make international agreements without the consent of the 
Senate, by virtue of his authority as Commander-in-Chief, is 
the protocol concluded September 7, 1901, between China and 
the Allied Powers that had intervened during the Boxer upris- 
ing. This protocol required reparation for the murder of the 
German minister, and punishment of the principal authors of 
the outrages committed against foreigners during the uprising; 
prohibited to China the importation of arms and ammunition or 
of materials used exclusively for their manufacture ; demand- 
ed an indemnity of 450,000,000 taels; constituted an extrater- 
ritorial quarter for the foreign legations in Peking; permitted 
temporary occupation by the Powers of certain strategic points ; 

52 J. B. Moore, in Pol. Sci. Quar., XX, 390. 

ssCrandall, Treaties: Their Making and Enforcement, 106; Foster, Prac- 
tice of Diplomacy, 321. 

S4 ' ' The power to make and enforce such a temporary convention 
respecting its own territory is a necessary incident to every national gov- 
ernment, and adheres where the executive power is vested. . . This par- 
ticular convention should be allowed to modify for the time being the 
operation of the organic act of this Territory, so far forth as to exclude 
to the extent demanded by the political branch of the government of the 
United States, in the interest of peace, all territorial interference in the 
government of that island." Watts v. United States, 1 Wash. Terr., 288, 
294 (1870), quoted in Crandall, op. ait., 106-107. 



40 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [40 

and reguired numerous undertakings on the part of China, es- 
pecially with regard to the conduct of her foreign relations.^^ 

This protocol was signed on the part of the United States by 
W. W. Rockhill, whose appointment as special commissioner to 
China had not been submitted to the Senate ; it went into effect 
without any further ratification, the whole matter thus being 
carried on and concluded by authority of the Executive alone. 

It is now authoritatively recognized that the President, with- 
out legislative authority, but solely by virtue of his powers as 
Commander-in-Chief, may permit or refuse the entry of foreign 
troops into the United States.^^ By virtue of the same authority^ 
arrangements were made with Mexico in 1882, through an ex- 
change of notes, for the reciprocal passage of troops across the 
border in pursuit of hostile Indians. It is worthy of note that 
the Mexican Executive was distinctly authorized by the Mexican 
Senate to permit such crossing of troops, while in the United 
States the terms of the agreement were referred, not to the Sen- 
ate, but to the General of the Army, and approved by him and 
the Secretary of War,^^ These arrangements were renewed at 
various times,^® and form the basis for the attempted agreements 
of like nature during the border troubles in 1916.^^ A similar 

55 See text of protocol in For. Eel. 1901, App., 312-318, Foster calls 
this "probably the broadest exercise of executive authority in foreign 
matters without the concurrence of the Senate." Practice of Diplomacy, 
318. 

5eTuc1cer v. Alexandrojf, 183 U. S., 424, 435 (1902). Cf. Washington's 
refusal to permit British troops to cross United States territory in 1790,, 
and the opinions of his Cabinet on the question. Writings of George 
Washington, XI, 497, n.; Writings of Thomas Jefferson, Y, 238-239; Works 
of Alexander Hamilton, IV, 20-49; Life and Works of John Adams, VIII, 
497-500. 

5-! For. Eel. 188S, 396-397, 405, 419-426. The memorandum signed by 
Secretary Frelinghuysen and Minister Eomero stated that since the Mexi- 
can Senate had authorized the President of Mexico to allow the passing 
of Mexican troops into the United States and of United States troops into 
Mexico, ''and the Constitution of the United States empowers the Presi- 
dent of the United States to allow the passage without the consent of the 
Senate, this agreement does not require the sanction of the Senate of either 
country, and will begin to take effect twenty days after this date 
(July 29, 1882)." 

58 June 28, 1883; Oct. 31, 1884; Oct. 16, 1885; June 25, 1890; Nov. 
25, 1892; June 4, 1896. 

59 N. Y. Times Current Hist. Mag., IV, 403, 616, 618-619, 627. 



41] CONTKOL OF FOREIGN RELATIONS 41 

arrangement with Great Britain for the reciprocal crossing of 
the Canadian boundary was proposed by Secretary Frelinghuy- 
sen in 1883, but was rejected by Canada on the ground that it 
involved the ''risk of complications worse than that of Indian 
raids." «° 

Among executive agreements entered into by virtue of the 
President's diplomatic powers, and dealing with matters causing 
considerable dispute, difficulty, and possible complications, may 
be mentioned an agreement of 1885 with Great Britain, reached 
by an exchange of memoranda, with regard to the fisheries 
question ; ^^ a modus vivendi with the same country in 1899 fix- 
ing a provisional boundary between Alaska and Canada;*'^ the 
protocol of 1873 settling the Virginius affair with Spain f^ Sec- 
retary of War Taft's adjustment of the boundaries of the 
Panama Canal Zone ; ^^ and the Root-Takahira and Lansing- 
Ishii agreements of 1907 and 1917, respectively.^^ 

The action of President Roosevelt in 1905 with regard to 

60 See report of the Indian Commissioner for the Northwest Territories 
(Canada). For. Bel. 1883, 528, 

61 ^or. EeL 1885, 460-469. "This agreement proceeds from the mu- 
tual good-will of the two governments, and has been reached solely to 
avoid all misunderstandings and difficulties which might otherwise arise 
from the abrupt termination of the fishing of 1885 in the midst of the 
season." Statement of Secretary Bayard. Ibid., 460. 

62 For. Bel. 1899, 328-330. 
63Crandall, op. cit., 107-108. 

64 " I had no power to make a treaty with Panama, but I did have, 
with the authority of the President, the right to make rules equivalent 
to law in the Zone. I therefore issued an order directing the carrying 
out of the plan agreed upon, in so far as it was necessary to carry it out 
on our side of the line, on condition that, and as long as, the regulations 
to be made by Panama were enforced by that government. This was ap- 
proved by Secretary Hay and the President, and has constituted down 
until the present day, I believe, the basis upon which the two govern- 
ments are carried on in this close proximity. It was attacked vigorously 
in the Senate as a usurpation of the treaty-making power, and I was 
summoned before a committee in the Senate to justify what had been 
done. There was a great deal of eloquence over this usurpation by Mr, 
Morgan and other Senators, but the modus vivendi continued as the 
practical agreement between the nations for certainly more than seven 
years, and my impression is that it is still in force in most of its pro- 
visions." Taft, Our Chief Magistrate and his Powers, 111-112. 

esiTor. Bel. 1908, 510-512; Am. Jour. Int. Law, XII, Supp., 1-3. 



42 WAR POWKRS OF THE EXECUTIVE IN UNITED STATES [42 

Santo Domingo is especially noteworthy in this connection, in 
that a treaty was first negotiated providing that the United 
States should guarantee the integrity of that country, take 
charge of its customs, and settle its obligations; and when this 
treaty failed of ratification in the Senate, President Roosevelt 
nevertheless put its terms into effect through a modus vivendi. 
For two years the affairs of that island were administered under 
the sole authority of this executive agreement, until in 1907 the 
Senate yielded and ratified a slightly revised treaty.^^ 

The President is thus enabled, through his power of entering 
into these executive agreements which do not require the sanc- 
tion of the Senate, to assume complete responsibility for the 
handling of matters of almost every variety in the field of 
foreign relations, many of which involve complications and deli- 
cate questions that might easily affect the peace and safety of 
the United States. 



66 Latane, America as a World Power, 280-281 ; J. B. Moore, in Pol. 
Sci. Quar., XX, 386-387; Eoosevelt, Autoiiography^ 551-552. 



CHAPTER III 

MILITARY MEASURES SHORT OF WAR 

By virtue of his position as Commander-in-Chief, as well as 
by authority of other constitutional and statutory provisions, the 
President may undertake numerous military measures that are 
short of actual war. In the first place, there are many instances 
in which he may employ the armed forces to aid the civil au- 
thorities within the United States. Thus, for example, the con- 
stitutional clause guaranteeing to every state a republican form 
of government and protection against domestic violence,^ is held 
to give the President power to use troops, without special legis- 
lative sanction, when needed for those purposes, and even to an- 
ticipate and prevent local disturbances by a show of force.^ 

In 1878 an attempt was made to restrict the President 's power 
to use the armed forces in executing the laws of the United 
States through an act of Congress forbidding the employment of 
the army as a posse comitatus, except as expressly authorized by 
the Constitution or by statute.^ It has been held, however, in 
spite of that statute, that the provisions of the Constitution vest- 
ing the President with the executive power and making it his 
duty to ' ' take care that the laws be faithfully executed, ' ' * 
must be construed as giving to the President the general power 
of enforcing the laws and the "peace of the United States" by 
any means that he may find necessary.^ "Congress may, by dis- 

1 Art. IV, Sec. 4. 

2Lieber, TJie Use of the Army in Aid of the Civil Power, 30-37,45; 
Winthrop, Abridgment of Military Law, (2nd ed.), 336-337. Cf. the send- 
ing of troops under Gen. Wood to Gary in 1919 to prevent disorder dur- 
ing the steel strike. 

3 Act of June 18, 1878. 20 Stat, at L., 145, 152 (Sec. 15). 

4 Art 11, Sec. 1, 01. 1; Sec. 3. 

sLieber, op. cit., 14, 37, 40, 55; Ex parte Siebold, 100 U. S., 371, 
394-395 (1879); In re Neagle, 135 U. S., 1, 63-64, 67, 69 (1890). Cf. 

/ 

43 



44 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [44 

banding the Army, render it impossible for the President to 
resort to his constitutional power as executive and commander- 
in-chief of employing the Army in aid of the civil power, in the 
execution of the laws, or may couple an appropriation for the 
support of the Army with a condition as to the use of the 
money appropriated ; but, if it be true that the Constitution di- 
rectly vests the President with (this) duty and power . . . 
Congress cannot make the exercise of such power illegal. It may 
prevent its exercise, but it cannot make it illegal. ' ' ^ 

These constitutional powers are also reinforced by statutory 
authorization to use the armed forces in aid of the civil power in 
several specific instances. Thus the President is expressly em- 
powered to employ the land or naval forces to such extent as 
may be necessary for the protection of civil rights ; for carrying 
out the guarantees to the Indians; for the preservation of the 
public lands and forests; and for the enforcement of the laws 
with respect to quarantine, extradition, and neutrality.'^ 

In none of these instances should the exercise of his powers 
by the President cause any difficulties or complications with 
foreign nations, except in the case of the enforcement of the neu- 
trality laws of the United States. In this connection, mention 
need only be made of such incidents as Washington's famous 
neutrality proclamation of 1793,^ the Fenian invasion of Canada 

President Cleveland's use of troops in Chicago during the railroad strike 
of 1894, over the protest of Gov. Altgeld, 

eLieber, op. cit., 56-57. See also opinions of ex- Attorney General 
Miller and Senator Edmunds. Hid., 15 n., 43; cf. Pomeroy, Constitution- 
al Law (Bennett ed.), 537-538. 

7Z7. S. Bev. Stats., Sees. 1984, 1989; 2118, 2147, 2150-2152; 2460, 
5596; 4792, 5275; 23 Stat, at L., 322; 31 iUd., 618; ,35 Hid., lO&S, 
1089. These are conveniently listed in Army Eegulations (ed. 1917), 
106-109. 

8 The first neutrality law of the United States was not passed until 
1794, hence Washington's proclamation was based not on statutory au- 
thority, but on the obligations of neutrality as defined in the law of 
nations. Writings of George Washington, XII, 281-282. Cf. with Wilson's 
proclamations of neutrality in 1914. U. S. Stats., 63 Cong., 2 Sess., Pt. 
2, Procs., 62 ff. The right of the President to commit the country to a 
policy of neutrality was vigorously condemned and defended by Madison 
and Hamilton, respectively, in the famous Helvidiios and Pacificus letters. 
For pertinent extracts of these letters, as well as for comment upon them, 
see Corwin, The President's Control of Foreign Eelations, ch. 1. 



45] MILITARY MEASURES SHORT OF WAR 45 

in 1866,^ the numerous filibustering expeditions against Cuba 
and other countries/" and the strong feeling of the Central Pow- 
ers against the manner in which the neutrality of the United 
States was enforced during the the first years of the recent 
World War, to indicate the delicate nature of the President's 
responsibility in this regard, and the possible international com- 
plications that may result. ^^ 

The President has also been empowered on some occasions, 
and on other occasions has exercised the power without specific 
authority, to undertake military measures for the protection of 
the so-called ''inchoate" interests of the United States — meas- 
ures that involve a considerable interference with the rights of 
other nations and are therefore fraught with serious possibilities. 
As early as January 15, 1811, a resolution of Congress asserted 
the peculiar interest of the United States in the Spanish province 
of Florida and declared, ''That the United States, under the 
peculiar circumstances of the existing crisis, cannot, without 
serious inquietude, see any part of the said territory pass into the 
hands of a foreign Power; and that a due regard to their own 
safety compels them to provide, under certain contingencies, 
for the temporary occupation of the said territory; they, at the 
same time, declare that the said territory shall, in their hands, 
remain subject to future negotiation." 

Following out the sentiment of this resolution, an act of the 
same date authorized the President, by means of the military 
and naval forces, to take possession of, hold, and occupy the terri- 

9 For an excellent account of this incident, together with the compli- 
cations it involved, see Oberholtzer, History of the United States since 
the Civil War, I, 524-537, esp. 528, 532, 534-535. 

10 Latane, America as a World Power, 8-9 ; Chadwick, delations of the 
United States and Spain: Diplomacy, 411-426; Smith, Parties and Slav- 
ery, 251-256. 

11 President Polk in 1848 found it difficult to reconcile his frank 
sympathy for the Irish with his duty to enforce the neutrality laws against 
American citizens aiding the Irish revolt, and when called upon by the 
British government to act, hesitated in the hope that the issue might be 
evaded. With regard to the expedition of the so-called ' ' Buffalo Hunt- 
ers" against Mexico in the same year, he had no such qiialms, but im- 
mediately sent instructions to Gen. Taylor to use such military force as 
was necessary to check the movement. Diary of James K. Polk, IV, 104- 
106, 109, 112. 



46 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [46 

tory of East Florida, if necessary to prevent its occupation by 
any foreign government, and to establish a temporary govern- 
ment over that region ; while another act of February 12, 1813, 

authorized him to take similar action with regard to West Flor- 
ida.^2 

As a result of these acts, Amelia Island in East Florida, cap- 
tured from the Spanish in 1811 by a party of so-called "pa- 
triots," assisted by a few American troops and gun-boats, was 
held by the United States and subject to regulations imposed 
by American officers for more than a year ; while in West Flor- 
ida, the city of Mobile was seized by General Wilkinson in 1813, 
under orders from the President, and never surrendered.^^ 

Again in 1819, the treaty ceding Florida to the United States 
having been signed, but not yet ratified by Spain, President Mon- 
roe suggested to Congress that the interests of the United States 
in Florida were such that he should be authorized to occupy that 
territory and carry out the provisions of the treaty as if it 
were in effect.^* Military measures for the occupation of Flor- 
ida were contemplated, even to the extent of reducing St. Au- 
gustine by ''regular siege," if necessary,^^ but fortunately for 
the peace of the two countries. Congress did not see fit at that 
time to authorize such action.^'' 

12 These are the famous "secret laws" referred to by John Quincy 
Adams as "those singular anomalies of our system which have grown 
out of that error in our Constitution which confers upon the legislative 
assemblies the power of declaring war." He also says that there are 
four of these secret laws and one resolution; "and one of the laws, that 
of 25th June, 1812, is so secret that this day it could not be found among 
the rolls at the Department." Memoirs, IV, 32 (Dec. 30, 1817). The act 
of 1812 referred to by Adams has apparently not yet been found or pub- 
lished, while the fourth law to which he refers is probably that of Mar. 3, 
1811, which placed the ban of secrecy on these acts, including itself. The 
injunction of secrecy was removed July 6, 1812, but the laws were not 
published until 1818. See Annals of Cong., 15 Cong., 1 Sess., II, App., 
2601-2604. 

13 Thomas, Military Government in Neivly Acquired Territory of the 
United States, 55-56. 

14 Message of Dec. 7, 1819. Eichardson, Messages and Papers of the 
Presidents, II, 57; cf. Memoirs, of John Quincy Adams, TV, 480. 

15 Jameson, ' ' Calhoun Correspondence, ' ' in Beport, Am. Hist. Assn., 
1899, II, 164-165, 165-166. 

IS The act for carrying the treaty into effect was passed Mar. 3, 1821, 
while the exchange of ratifications occurred in February. 



47] MILITARY MEASURES SHORT OP WAR 47 

The right of the President to undertake military measures 
for the protection of these "inchoate interests" of the United 
States, even without legislative sanction, was apparently first 
asserted in 1844. In that year President Tyler, having entered 
into negotiations with Texas for its annexation to the United 
States, ordered such a concentration of the land and naval forces 
as to protect Texas against the danger of a Mexican invasion 
while the treaty of annexation was under consideration in the 
Senate.^^ In response to a Senate resolution of inquiry, the Presi- 
dent defended his action by declaring it as his opinion "that 
the United States having by the treaty of annexation acquired a 
title to Texas which required only the action of the Senate to 
perfect it, no other power could be permitted to invade and by 
force of arms to possess itself of any portion of the territory of 
Texas pending your deliberations upon the treaty without plac- 
ing itself in a hostile attitude to the United States and justifying 
the employment of any military means at our disposal to drive 
back the invasion." ^^ 

In spite of vigorous denunciation of this action in Congress 
and a threat of impeachment against President Tyler,^^ the 
same doctrine of an inchoate interest in Texas was advocated by 
President Polk. He declared that "the moment the terms of 
annexation offered by the United States were accepted by Texas 
the latter became so far a part of our country as to make it our 
duty to afford such protection and defense ; " ^° and therefore, 

17 Corwin, The President 's Control of Foreign Belations, 156 ; Eeeves, 
American Diplomacy under Tyler and Folic, 169; Eichardson, op. cit., 
IV, 317. 

18 Message to Senate, May 15, 1844. Eichardson, op. cit., IV, 317. 

19 Eeeves, op. cit., 163. Senator Benton replied to the President 's 
message as follows: "This is a reversal of the power of the Senate, and 
a reading backwards of the Constitution. It makes an act of de- 
feasance from the Senate necessary to undo a treaty which the President 
sends to us, instead of requiring our assent to give it validity. It as- 
sumes Texas to be in the Union, and protected by our Constitution from 
invasion or insurrection, like any part of the existing States or Terri- 
tories; and to remain so till the Senate puts her out by rejecting the 
treaty! This, indeed, is not merely reading, but spelling the Constitution 
backwards! It is reversing the functions of the Senate and making it 
a nullifying, instead of a ratifying body." Cong. Gloie, XIII, App., 
498 (28 Cong., 1 Sess., June 1, 1844). 

20 Message to Congress, Dec. 2, 1845. Eichardson, op. cit., IV, 388. 



48 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [48 

in May, 1845, he ordered General Taylor to cross into Texas to 
protect it pending annexation.^^ Clearly, the action of Presi- 
dent Polk had more basis than that of President Tyler. Tyler 
considered himself empowered to protect territory whose acquisi- 
tion was merely proposed in a treaty not yet ratified, and which, 
in fact, failed of ratification; while Polk's action had at least 
the justification that the annexation of Texas was then an as- 
sured fact, altho at that time not formally in effect. 

President Grant's policy with regard to Santo Domingo (1869- 
1871) likewise involved the principle of an inchoate interest on 
the part of the United States which the President was empow- 
ered to protect. Having negotiated with President Baez a treaty 
of annexation by a most unusual method and almost without the 
knowledge of his Cabinet, Grant sent a strong naval force to the 
island to protect it from invasion and from internal disorder, 
not only during the consideration of the treaty by the Senate, 
but even after its rejection,^- on the ground that "the Govern- 
ment of the United States is peculiarly interested in the exemp- 
tion of the Dominican Republic both from internal commotions 
and from invasions from abroad. ' ' ^^ 

The President's action was severely condemned on the floor 
of the Senate, especially by such men as Sumner and Schurz. 
Schurz declared the doctrine that the President could, by mak- 
ing a treaty, create an inchoate right to some foreign territory, 
and then, without authority from Congress, commit acts of war 
for the enforcement of that inchoate right, to be "the hugest 
absurdity, the most audacious preposterosity, the most mischie- 
vous, dangerous, and anti-republican doctrine that ever was 
broached on the floor of the Senate. ' ' ^* 

Senator Sumner likewise bitterly scored the action of the 
President, and offered a resolution condemning the employment 
of the Navy without the authority of Congress against a friendly 
foreign nation or in belligerent intervention in the affairs of a 

21 Eichardson, op. cit., TV, 388-389; Reeves, op cit., 277. 

22 Ehodes, History of the United States, VI, 346-354 ; Corwin, op. cit., 
158. For Grant's instructions to the U. S. naval officers, see Moore's 
Digest of International Law, I, 278. 

23 Secretary of State Fish to Mr. Bassett, minister to Hayti, Nov. 16, 
1870. Moore's Digest, I, 279. The treaty had been rejected June 30, pre- 
ceding. 

24 Cong. Glole, 42 Cong., 1 Sess., Pt. II, App., 52. 



49]. MILITARY MEASURES SHORT OF WAR 49 

foreign nation, as ''an infraction of the Constitution of the 
United States and a usurpation of power not conferred upon the 
President." The resolution further declared, "That while the 
President, without any previous declaration of war by act of 
Congress, may defend the country against invasion by foreign 
enemies, he is not justified in exercising the same power in an 
outlying foreign island, which has not yet become part of the 
United States ; that a title under an unratified treaty is at most 
inchoate and contingent, while it is created by the President 
alone, in which respect it differs from any title created by act 
of Congress ; and since it is created by the President alone, with- 
out the support of law, whether in legislation or a ratified treaty, 
the employment of the Navy in the maintenance of the Govern- 
ment there is without any excuse of national defense, as also 
without any excuse of a previous declaration of war by Con- 
gress. " ^^ 

However, other Senators, such as Harlan (Iowa) and Morton 
(Indiana) came to the defense of the President, and Sumner's 
resolution was laid on the table by a large majority (38-16),^*' 
so that there would seem to be some point to Professor Corwin's 
remark about Harlan's argument that it "at least demonstrated 
the futility of attempting to confine the President's protective 
function to the mere duty of repelling invasion or immediate 
physical attack. ' ' ^^ 

President Koosevelt's action in 1903 in preventing the inter- 
ference of Colombia in the Panama revolution was likewise based 
on the ground of an inchoate interest on the part of the Uni- 
ted States in the Panama Canal and therefore in the success 
of the revolution.^® 

The President may also on his own authority undertake mili- 

z5C(mg. Glole, 42 Cong., 1 Sess., Pt. 11, 294. 
zeJMd., 329. 

27 The President's Control of Foreign Eelations, 160. President Roose- 
velt's action with regard to Santo Domingo in 1905 was similar to that 
of President Grant in that the contemplated measures were undertaken 
even after a treaty authorizing them had been rejected. Roosevelt's ac- 
tion, however, was not based on the doctrine of inchoate interest, but 
seems to be more properly classified under the policy of police super- 
vision. Infra, 54; cf. also sicpra, 41-42. 

28 See Jones, Carribiean Interests of the United States, 199-203; 
Roosevelt, Autol>iography, 553-569. 



50 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [50 

tary measures for the protection of American rights and inter- 
ests abroad.^" This power was exercised in 1853 in the famous 
Koszta incident, when Martin Koszta, a native of Hungary who 
had become an American declarant (not yet fully naturalized), 
but who had been seized at Smyrna at the instigation of the Aus- 
trian authorities, was released through the vigorous action of an 
American naval captain in training his guns upon the Austrian 
vessel on which Koszta was held. The incident caused consid- 
erable excitement and was protested by the Austrian govern- 
ment; but Captain Ingraham's action was sustained by public 
opinion, by Congress, and by the Executive, Secretary of State 
Marcy laying down the principle that any individual "clothed 
with our national character" is entitled to claim the protection 
of this government, "and it may respond to that claim without 
being obliged to explain its conduct to any foreign power; for 
it is its duty to make its nationality respected by other nations 
^_and respectable in every quarter of the globe. ' ' ^° 
/ Another demonstration of this power occurred a year later 
' (1854), when Greytown (San Juan), in Nicaragua, was bom- 
barded ' ' until the town was laid in ashes, ' ' in default of repara- 
tion demanded for an attack on the United States consul.^^ This 
action was approved and defended before Congress by President 
Pierce,^^ and later upheld by the courts. Justice Nelson declar- 
ing that it is to the President, as the Executive head of the Na- 
tion, that citizens abroad must look for protection of person and 
property, and that, for this purpose, ' ' the whole Executive power 
of the country is placed in his hands, under the Constitution, 
and the laws passed in pursuance thereof ; and different Depart- 
ments of government have been organized, through which this 
power may be most conveniently executed, whether by negotia- 
tion or force — a Department of State and a Department of the 
Navy." He further declared that the duty of such interposi- 
tion abroad, for the protection of the lives or property of the 

29 Corwin, op. cit., 142 ; Eoot, Military and Colonial Policy of the Uni- 
ted States, 157-158. 

so Rhodes, History of the United States, I, 416-419. The Supreme Court 
also referred to this incident with approval in a decision rendered some 
years later. In re 'N eagle, 135 IT. S., 1, 64 (1890). 

31 Ehodes, op. cit., II, 9-10. 

32 Message to Congress, Dec. 4, 1854. Eichardson, op. cit., V, 280-284. 



51] MILITARY MEASURES SHORT OP WAR 51 

citizen, ''must, of necessity, rest in the discretion of the Presi- 
dent." ^^ 

The attack by American war vessels upon the Barrier forts 
of China in 1856, in order to avenge an alleged insult to the 
flag,^* undertaken without authority of Congress, was apparent- 
ly approved even by the cautious Buchanan, altho further 
active participation in a military expedition into Chinese terri- 
tory was declined as beyond the authority of the President alone 
to undertake. Secretary Cass thus stated the position of the 
administration : ' ' Our naval officers have the right — it is their 
duty, indeed — to employ the forces under their command, not 
only in self-defense, but for the protection of the persons and 
property of our citizens when exposed to acts of lawless outrage, 
and this they have done both in China and elswhere, and will 
do again when necessary. But military expeditions into the 
Chinese territory can not be undertaken without the authority of 
the National Legislature. ' ' ^^ 

President Buchanan also, without authority from Congress, 
ordered a naval force to Cuban waters with directions "to pro- 
tect all vessels of the United States on the high seas from search 
or detention by the vessels of war of any other nation. ' ' A con- 
flict with Great Britain was avoided only by the latter 's aban- 
donment of her claim to the right of visit and search in time 
of peace.^® 

Even the qualification upon the President's powers admitted 
by Secretary Cass in 1857 was abandoned in 1900, when Presi- 
dent McKinley, without any express authorization from Con- 
gress, sent a naval force under Admiral Kempff and an army 
of about 5000 men under General Chaffee to China, not merely 

33 4 Blatchford, 451, 454, quoted in Coi"win, op. cit., 144. 

34 For account of this affair, see Foster, American Diplomacy in the 
Orient, 225-227. 

35 Cass to Lord Napier, Apr. 10, 1857. Moore's Digest, VII, 164. 

36 Richardson, op. cit., V, 507. Buchanan was, however, curiously in- 
consistent, deeming it necessary to appeal to Congress for authority to 
protect American citizens in Nicaragua, New Grenada, and Mexico, and 
to keep the Panama and Tehuantepec routes of transit open and safe for 
them. "The executive government of this country," he said, "in its 
intercourse with foreign nations is limited to the employment of diplo- 
macy. When that fails it can proceed no further. It can not legitimately 
resort to force without the direct authority of Congress, except in re- 



52 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [52 

for the purpose of rescuing and protecting the lives and property 
of American citizens in China, but also to cooperate v^ith the 
forces of the other Powers in avenging and punishing the mur- 
der of the representatives of these Powers that had been killed 
during the Boxer uprising. Altho the ensuing campaign 
involved hard fighting and many casualties, the President said 
that our declared aims "involved no war against the Chinese 
nation. We adhered to the legitimate office of rescuing the im- 
periled legation, obtaining redress for wrongs already suffered, 
securing wherever possible the safety of American life and prop- 
erty in China, and preventing a spread of the disorders or their 
recurrence. ' '^^ 

A still more recent example of this exercise of the President's 
power is the action of President Wilson in April, 1914, in or- 
dering a force of sailors and marines to capture Vera Cruz 
by way of reparation for Huerta's affront to the flag of the Uni- 
ted States. This measure, characterized by an eminent histor- 
ian as " an act of war ' ' which looked to Latin- American countries 
like "the beginning of a war of conquest" and which was 
"fiercely resented in Mexico," was undertaken without author- 
ity from Congress,^^ the city, moreover, being occupied for a 
period of seven months (until November 23, 1914) by an army 
of 6000 men under General Funston.^^ 

The power of the President to employ the land and naval 
forces on his own authority, whether for the purpose of protect- 

sisting and repelling hostile attacks. . . Without the authority off 
Congress the Executive can not . . . , without transcending his con- 
stitutional power, direct a gun to be fired into a port or land a seaman or 
marine to protect the lives of our countrymen on shore or to obtain re- 
dress for a recent outrage on their property. . . Without the au- 
thority of Congress the President can not fire a hostile gun in any case 
except to repel the attacks of an enemy." Richardson, op. cit., V, 516, 
539, 570. 

37 Message to Congress, Dee. 3, 1900. For. Bel. 1900, xiv. For an ac- 
count of the expedition, see Eoot, Military and Colonial Policy of the Uni- 
ted States, 333, 336-347; cf. Taft, Our Chief Magistrate and His Powers, 
114-115. 

38 Vera Cruz was captured Apr. 21, 1914. The next day Congress passed 
a resolution declaring the use of troops justifiable and disclaiming any 
purpose to make war. 38 Stat, at L., 770. 

39 Ogg, National Progress, 293-295. 



53] MILITAEY MEASURES SHORT OF WAR 53 

ing the so-called "inchoate interests" and honor of the United 
States, or the rights and property of American citizens abroad, 
has thas been demonstrated in actual practise again and again, 
and seems also to have been approved by Congress, by the courts, 
and by public opinion. It seems scarcely necessary to suggest 
the possibilities of international complications and conflicts that 
may result from an unwise exercise of this power, and hence the 
enormous responsibility for the peace of the United States that 
rests in this way upon the shoulders of the President. 

But in addition to these powers of protection, which are, 
after all, inherent in government, a more recent development of 
American foreign policy has vested in the President considerable 
power with respect to intervention and police supervision over 
the affairs of other nations. The so-called "zone of the Carib- 
bean," because of its proximity and strategic importance to the 
United States, the unsettled character of the governments in 
that zone, and the inclination of the United States under the 
Monroe Doctrine to look with disfavor upon action by any for- 
eign power, is now considered as being under the general police 
supervision of the United States; the policy of this country hav- 
ing undergone a gradual change from one of sympathetic inter- 
est but absolute non-interference in the affairs of these Carib- 
bean states to one of direct and active intervention in their in 
ternal affairs.*" 

This power of intervention and police supervision was prob 
ably first exercised by President Cleveland in 1885, when dur- 
ing the course of a civil war in Colombia, he sent troops to keep 
open the transit across the Isthmus of Panama. Altho this 
action was taken under authority of a provision (Article 35) in 
the treaty of 1846 with Colombia, its execution, as the President 
informed Congress, "necessarily involved police control where 
the local authority was temporarily powerless, but always in 
aid of the sovereignty of Colombia. ' ' *^ 

The doctrine upon which the exercise of such police control 

40 Jones, Caribbean Interests of the United States, 17-23. See also 
several articles by P. M. Brown — "Our Caribbean Policy," Proc. Acad. 
Pol. Sci., VII, 418-422; "American Diplomacy in Central America," 
Am. Pol. Sci. Bev., VI, supp., 152-163; "American Intervention in Cen- 
tral America," Am. Jour. Bace Development, IV, 409-426. 

41 Message to Congress, Dec. 8, 1885. Eichardson, op. cit., VIII, 326. 



54 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [54 

might be justified was laid down by President Roosevelt in his 
message to Congress, December 6, 1904, when he said : ' ' Chron- 
ic wrongdoing, or an impotence which results in a general loos- 
ening of the ties of civilized society, may in America, as else- 
where, ultimately require intervention by some civilized nation, 
and in the Western Hemisphere the adherence of the United 
States to the Monroe Doctrine may force the United States, how- 
ever reluctantly, in flagrant cases of such wrongdoing or im- 
potence, to the exercise of an international police power. "*^ 

The doctrine here laid down has since been developed into a 
definite policy largely through numerous military measures 
undertaken on the sole authority of the President. Thus, in 
1905, even before he entered into the executive agreement with 
Santo Domingo already referred to,*^ President Roosevelt di- 
rected United States naval forces to interfere and prevent any 
fighting in that country which might menace the custom- 
houses.** United States marines have since been landed on sev- 
eral occasions both in Hayti and Santo Domingo to preserve 
order and to maintain the customs service; since 1912 the lat- 
ter country has been favored with at least one visit a year from 
United States cruisers ; and in 1916 a military occupation of the 
island was established that has apparently not yet been aban- 
doned (June, 1920).*^ 

42 For. Bel. 1904, xli. 
i^ Supra, 41-42, 49n. 

44 ' ' Santo Domingo had fallen into such chaos that once for some weeks 
there were two rival governments in it, and a revolution was being car- 
ried on against each. . . The situation had become intolerable by the 
time that I interfered. There was a naval commander in the waters whom 
I directed to prevent any fighting which might menace the custoK^-houses. 
He carried out his orders, both to his and my satisfaction, in thorough- 
going fashion. On one occasion, when an insurgent force threatened to 
attack a town in which Americans had interests, he notified the com- 
manders on both sides that he would not permit any fighting in that town, 
but that he would appoint a certain place where they could meet and fight 
it out, and that the victors should have the town. They agreed to meet 
his wishes, the fight came off at the appointed place, and the victors, 
who if I remember rightly were the insurgents, were' given the town. ' ' 
Eoosevelt, Autobiography, 549. ^ 

45 Ogg, op. cit., 261 ; Am, Jowr. Int. Law, XI, 394-399 ; se« also infra, 
note 53. Since the above was written, there has been much severe criticism 
of the continued American occupation of Hayti. See especially a series 



\ 

55] MILITARY MEASURES SHORT OF WAR 55 

In February, 1907, during the course of a war between Nic- 
aragua and Honduras, American warships actively intervened in 
order to protect life and property from needless destruction and 
to prevent the spreading of the war, and the American charge 
(Philip Marshall Brown) even assumed temporary authority in 
Honduras when the government fled.*** In 1909-1910, by the 
use of naval vessels and marines, the resignation and flight of 
an obnoxious president of Nicaragua (Zelaya) was forced and 
the success of a revolution assured;*'^ while in 1912 and 1914, 
United States marines again actively intervened in Nicaragua, 
but on these occasions on the side of the government, to put down 
revolutions that might otherwise have succeeded.*® In Hon- 
duras, the joint intervention of American and British marines 
prevented fighting between the two factions in that country, 
and secured the election of a provisional president agreeable 
to both factions ;*° while only recently an American naval force 
was again landed in that country to preserve order during a 
change of government.^" 

In all these numerous instances of intervention and police 
supervision in the Caribbean zone, the use of the marines has 
been so common as to warrant the suggestion of a new consti- 
tutional principle, that the landing of marines may be consid- 
ered as a ''mere local police measure," while the use of regulars 
for the same purpose would be an act of war.^^ Intervention is, 
however, defined in a recent official publication as "an inter- 
ference by a nation in the affairs of another without the inten- 

of articles by James Weldon Johnson in TJie Nation, Aug. 28, Sept. 4, 11, 
1920. 

46 For. Bel. 1907, II, 627-628 ; P. M. Brown, op. cit., in Am. Jour. Bace 
Development. 

iTFor. Bel. 1909, 452-459; iUd., 1910, 738-767. 

48 Jones, op. cit., 176-178; Ogg, op. dt., 261-262. President Taft men- 
tions the intervention of 1912 as "the landing of marines and quite a 
campaign, which resulted in the maintenance of law and order and the 
elimination of the insurrectos. " He says this was "not an act of war, 
because it was done at the request and with the consent of the lawful au- 
thorities of the territory where it took place." Our Chief Magistrate and 
His Poivers, 96. 

49 P. M. Brown, op. cit., in Am. Jour. Bace Development, Am. Pol. Sci. 
Bev. 

50 N ¥. Times, Sept. 12, 1919. 

51 See Taft, Our Chief Magistrate and His Powers, 95. 



56 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [56 

tion of waging war. It is commonly defended as a police meas- 
ure by the intervening power, but is often followed by war, 
and may always be regarded by the second power as an act of 
war. ' ' ^^ Hence, even tho the suggestion of a constitutional 
principle may be accepted in the United States as justifying the 
President in his frequent resort to such measures of police con- 
trol in the zone of the Carribbean, as it apparently has been ac- 
cepted, this exercise of the President's power may not be so 
readily accepted by the other countries concerned, but may, on 
the other hand, be resented by them and lead to serious difficul- 
ties and entanglements, if not to actual war.^^ 

Kecent events have also shown the possibilities involved in an 
extension of these powers of intervention and police supervision, 
even beyond the zone of the Carribbean. The landing of United 
State bluejackets at Trau in September, 1919, in order to pre- 
vent a conflict between the Italians and the Serbs, altho ap- 
parently done at the request of the Italian authorities,^* was 
entirely without the previous knowledge or consent of Congress 
or the Senate. 

This use of American forces for police purposes in Dal- 
matia, and the report that troops were also to be sent to super- 
vise the plebiscites in Silesia and to preserve order in Armenia 
and elswhere,^^ aroused a storm of criticism in Congress. The 
action in Dalmatia was denounced as against law and preced- 

52 War Cyclopedia (1st ed.), 138. 

53 Cf. Jones, op. cit., 190. In the fall of 1919, a commission from 
Santo Domingo issued a plea for self-government and the abandonment 
of the American military government; while at about the same time the 
Spanish government transmitted to Washington a letter from the heads of 
all the Spanish parliamentary parties, suggesting that the time had come 
for a termination of the American military occupation of that island. 
N. Y. Times, Sept. 11, 12, 1919. 

54 See statement of Admiral Knapp, transmitted by Secretary Daniels 
to the Senate, Oct. 2, 1919, in response to a Senate resolution. Hid., Oct. 
3, 1919. 

55 iV". Y. Times Current Eist. Mag., XI, 225-226 (Nov., 1919). Accord- 
ing to press reports a force of American troops was sent to Coblenz with 
a view to their possible use ultimately to help police the plebiscite in 
Upper Silesia; but Secretary of War Baker announced that these troops 
would remain at Coblenz as a part of the garirson there, unless the Sen- 
ate should ratify the treaty and thus make American participation in the 
plebiscite strictly legal. See N. Y. Times, Nov. 21, 1919. 



57] MILITARY MEASURES SHORT OF WAR 57 

ent, and Senator Sherman (Illinois) introduced a resolution de- 
claring that the assignment of foreign territory to be policed 
or guarded by United States forces was beyond the power of the 
Supreme War Council or the Executive, without the consent of 
the Senate.^*' 

Such a conception of the President's power with regard to the 
use of the armed forces might have some weight, had the action 
under criticism been taken in time of peace. Under the cir- 
cumstances, however, of a continuing state of war, the correct 
view was undoubtedly stated by Senator Hitchcock (Nebraska) 
when he said that the action taken with regard to the Dalma- 
tian coast was within the war powers of the President and dele- 
gated by him to the Supreme War Council.^'^ The failure of 
the Senate to take any action on the Sherman resolution would 
seem to indicate its approval of this view. The incident serves 
at least to illustrate the possibilities involved in an extension of 
the sphere within which the President may undertake these mili- 
tary measures without the authority of Congress. 



56 iV". r. Times, Sept. 27, 30, 1919. 
57Z&id., Sept. 30, 1919. 



CHAPTER IV 

POWER OF DEFENSE 

A formal declaration is not necessary to constitute a state of 
war, and is a comparatively unimportant factor in dating the 
beginning of a war, because it does not necessarily precede hos- 
tilities, nor has it in fact often done so. Until recently, a formal 
declaration of war was not, as a matter of international law, 
necessary or usual/ Most wars during the eighteenth and nine- 
teenth centuries were fought "under the rule of a word and a 
blow, with the blow coming first and the word possibly left un- 
said. " ^ A declaration of war, says Woolsey>^ is "a warning 
issued by a state to its own people, or to the neutral, that war 
has begun, and not a warning to the enemy that war will begin 
at a certain future date. Marking thus a status already exist- 
ing, it cannot itself originate that status. The outbreak of war 
gives rise to the declaration, not the declaration to the outbreak. 
It is the fact of violence, then, and not the declaration of a stat- 
us, upon which we must really fix our eyes, if we should ask 
when war begins." 

The question then arises, under what circumstances may a 
war be begun before a formal declaration is made, or even with- 
out a formal declaration, and with what branch of the govern- 
ment the power rests to begin such a war. 

Authorities agree that the power to begin an offensive war, 
or a war of aggression, rests in the United States only with 
Congress, and should properly be preceded by a declaration made 

1 S. E. Baldwin, in Am. Jour. Int. Laiv, XII, 1; Woolsey, Internation- 
al Law, see. 120; Moore's Digest of International Law, VII, 171. 

2 For a list of wars begun without a declaration, see Am. Jour. Int. Law, 
II, 57-62. 

3 T. S. Woolsey, ' ' The Beginnings of War, ' ' Proceedings, Am. Pol. 
Sci. Assn., I, 54-68. 

58 



59] POWER OF DEFENSE 59 

by that body.* The Constitution establishes the mode in which 
this government shall commence wars of its seeking, but the 
Constitution has no power to prescribe the manner in which oth- 
ers should begin war against us. There is in every nation an in- 
herent power of self-defense, and it is to be presumed that, 
tho the power to declare a war is by our Constitution clearly 
vested in Congress, in the absence of such a declaration the Con- 
stitution does not leave the nation powerless for defense against 
attack. Hence it follows, as Whiting says, "that when war is 
commenced against this country by aliens or citizens, no declara- 
tion of war by the government is necessary. ' ' ^ 

Whiting also contends that the power to begin and wage a 
war of defense rests clearly with the President. ''The fact 
that war is levied against the United States," he says, "makes 
it the duty of the President to call out the army or navy to 
subdue the enemy, whether foreign or domestic. . . If the 
commander-in-chief could not call out his forces to repel an in- 
vasion unless the Legislative department had previously made a 
formal declaration of war, a foreign enemy, during a recess of 
Congress, might send out its armed cruisers to sweep our com- 
merce from the seas, or it might cross our borders and march, 
unopposed, from Canada to the Gulf before a majority of our 
Kepresentatives could be convened to make that declaration." 
He claims that the Constitution, which gives the Legislature au- 
thority to declare war whenever initiated by the United States, 
also imposes upon the President the duty, as commander-in- 
chief, "to engage promptly and effectually, in war, or, in other 
words, to make the United States a belligerent nation without a 
declaration of war or any other act of Congress, whenever he 
is legally called upon to suppress rebellion, repel invasion, or to 
execute the laws against armed public resistance thereto. ' ' ^ This 

4 Whiting, War Powers under the Constitution, 39; Burgess, Political 
Science and Comparative Constitutional Law, II, 261; Taft, Our Chief 
Magistrate and His Powers, 95; Prise Cases, 2 Black, 635, 668 (1862). 

5 Whiting, op. cit., 39 ; ef. amendment proposed by the Hartford Con- 
vention of 1814, providing for a two-thirds vote of both houses to declare 
war or authorize hostilities, ''except such acts of hostility be in defense 
of the territiories of the United States when actually invaded. ' ' The 
Federalist (Ford ed.), Appendix, 689. 

6 Whiting, op. cit., 39-40 ; cf. Birkhimer, Military Government and Mar- 
tial Law (2nd ed.), 48. 



60 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [60 

view is supported by Birkliimer/ who admits that a formal dec- 
laration of war can be made only by Congress, but says that it 
is necessary sometimes to prosecute hostilities without such a 
declaration, and that the President then must act, for the time 
being, at least, independently of Congress. "When the authori- 
ties of the Union are assailed, either by foreign foes, . . or by 
domestic ones, . . it is the duty of the President to repel 
force with force without waiting for any formal declaration. ' ' 
The power of the President to begin and carry on a defensive 
V war without a declaration by Congress is also vigorously upheld 
; by the Supreme Court of the United States. In handing down 
, '^-> the decision of the court in the famous Prize Cases,^ Justice 

y I. , . . . . . 

/ Grier, after admitting the full constitutional power of Congress 
to declare a national or foreign war, said: "The Constitution 
confers on the President the whole Executive power. He is bound 
to take care that the laws be faithfully executed. He is Com- 
mander-in-Chief of the Army and Navy of the United States, 
and of the militia of the several states when called into the actual 
service of the United States. He has no power to initiate or 
declare a war either against a foreign nation or a domestic State. 
But by the Acts of Congress of February 28th, 1795, and 3d of 
March, 1807, he is authorized to call out the militia and use the 
military and naval forces of the United States in case of in- 
vasion by foreign nations, and to suppress insurrection against 
the government of a State or of the United States. If a war be 
made by invasion of a foreign nation, the President is not only 
authorized but bound to resist force by force. He does not in- 
itiate the war, but is bound to accept the challenge without 
waiting for any special legislative authority. And whether 
the hostile party be a foreign invader, or States organized in 
rebellion, jt is none the less a war, although the declaration of it 
be 'unilateral.' " ^ 

7 Military Government and Martial Law, 47 ; cf. also Chambruu, The 
Executive Power, 120. 

8 2 Black, 635 (1862). 

s Prise Cases, 2 Black, 635, 668 (1862). Cf. Talbot v. Johnson, 3 Dall., 
133, 160 (1795): ''War can alone be entered into by national authority; 
it is instituted for national purposes, and directed to national ob- 
jects. . . Even in the case of one enemy against another enemy, there- 
fore, there is no color of justification for any hostile act, unless it be 
authorized by some act of the government giving the public constitution- 
al sanction to it." 



61] POWER OF DEFENSE 61 

That defensive wars are clearly contemplated by the Con- 
stitution is shown by the provision which gives to Congress the 
power "to provide for calling forth the militia to execute the 
laws of the Union, suppress insurrections, and repel inva- 
sions."^" Under that provision, Congress has, by the acts re- 
ferred to in the Supreme Court decision, and other acts, vested 
the President with authority to call out and use the militia in 
the cases contemplated, and in that sense wage a defensive war 
without further declaration by Congress. 

The Supreme Court need not have rested its case, however, 
solely on those Acts of Congress, but might have gone back to 
the language and intent of the Constitution itself. The action 
of the Convention of 1787 is significant in this connection. The 
Committee on Detail had reported a clause giving to Congress 
the power ' ' to make war. " ^^ During the discussion over this 
proposition, it was suggested that the wording of the clause gave 
Congress practically unlimited control over all the operations of 
war. Hence Madison and Gerry moved to strike out the word 
"make" and insert "declare," with the avowed purpose of 
"leaving to the Executive the power to repel sudden attacks." ^^ 
The suggested change in language was adopted with little op- 
position, and there would here seem to be some constitutional 
sanction for the power of the President to wage defensive wars 
without direct authorization from Congress. 

That power of the President is now at least a generally recog- 
nized and well established principle of American constitutional 
law, the validity of which was vigorously asserted in 1907 by 
our delegates at the Hague Conference. When the proposal was 
made for an article requiring that hostilities should not begin 
without a previous warning, in the form of a declaration of war 
or of an ultimatum accompanied by a conditional declaration of 
war, the American delegation expressed its entire sympathy with 
the purport of the article. It called attention, however, to the 
fact that Congress under the Constitution had exclusive power to 
declare war, and that the delegation could enter into no agree- 

''^0 Constitution, Art. I, Sec. 8, CI. 15. 
^'i- Madison' s Journal (Hunt ed.), II, 82. 
12 lUd., 188. 



62 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [62 

ment to modify that power in any way. The statement of the 
delegation then went on to say : ' ' While this is true as to aggres- 
sive military operations, it is proper to say, however, that it has 
, been the unbroken practise of the Government of the United 
■ States for more than a century to recognize in the President, as 
the Commander-in-Chief of the constitutional land and naval 
forces, full power to defend the territory of the United States 
from invasion, and to exercise at all times and in all places the 
right of natiorial self-defense." The delegation announced its 
willingness to support a proposition favoring a formal declara- 
tion of intent to engage in hostilities, providing it were nonman- 
datory in character. ^^ 

The power of the President to wage a defensive war without 
a formal declaration and without specific authorization by Con- 
gress is thus, according to all authority, clearly granted, if not 
in so many words, at least by implication and the inherent pur- 
pose of the Constitution. The questions still remain as to what 
constitutes a defensive war, and to what extent the President 
may exercise these powers of defense. They are best answered 
by some references to history. 

President Washington had appointed General Wayne to suc- 
ceed St. Clair in command of the western department, and in 
the spring of 1794 Wayne was ready to move against the Indians. 
Meanwhile, the British had established a fort at the rapids of 
the Miami, twenty miles within American territory, near which 
the Indians took their stand. The action of the British was, 
of course, entirely unjustified, and technically constituted an 
invasion of American territory ; but it is not clear that any ag- 
gressive act of war was intended. Washington recognized that 
an attempt to dislodge them would probably bring on a conflict, 
which he was especially anxious to avoid. He seemed, however, 
to have no doubts as to his power in that regard, for, after weigh- 
ing carefully the expediency of such action, and without con- 
sulting Congress, the following instructions were issued to 
Wayne by General Knox, the Secretary of War: "If, therefore, 
in the course of your operations against the Indian enemy, it 
should become necessary to dislodge the party at the rapids of 

13 See article by George B. Davis, ' ' The Amelioration of the Eules of 
War on Land," in Am. Jour. Int. Law, II, 63-77. 



63] POWER OF DEFENSE 63 

the Miami, you are hereby authorized, in the name of the Presi- 
dent of the United States, to do it. " '* Fortunately, Wayne was 
able to defeat the Indians without becoming officially involved 
with the British, and a conflict was for the time being averted. 

The question of the extent of the President 's powers in the 
case of a war begun by another nation was more clearly raised 
in Jefferson's administration, with regard to Tripoli. Tripoli 
had declared war on the United States because of the latter 's 
failure to comply with demands which Jefferson said were "un- 
founded either in right or in compact." Jefferson apparently 
had no doubt of his power to take certain defensive measures 
without special authority from Congress, for he immediately 
despatched a small squadron of frigates into the Mediterranean, 
with orders to protect our commerce against attack. A conflict 
ensued, as a result of which one of the Tripolitan cruisers was 
captured together with what remained of her crew. But further 
than to fight in the strictest defense, Jefferson felt that he had 
no constitutional authority, and so, as he explained in his mes- 
sage to Congress, ''Unauthorized by the Constitution, without 
the sanction of Congress, to go beyond the line of defense, the 
vessel, being disabled from committing further hostilities, was 
liberated with its crew. The Legislature will doubtless consider 
whether, by authorizing measures of offense also, they will place 
our force on an equal footing with that of its adversaries. I 
communicate all material information on this subject, that in 
the exercise of this important function confided by the Consti- 
tution to the Legislature exclusively their judgment may form 
itself on a knowledge and consideration of every circumstance 
of weight. " ^^ 

It is not strange that such a timid attitude should have arous- 
ed the wrath of Hamilton, who attacked the President's inter- 
pretation of his war powers in his usual vigorous style. He 
called it a ''very extraordinary position" that, tho Tripoli 
had made a formal declaration of war against the United States 
and had performed acts of actual hostility, yet there was no pow- 
er, for want of the sanction of Congress, to capture and detain 
her crews. That position meant nothing less, he said, than ' ' that 
between two nations there may exist a state of complete war on 

14 Fish, American Diplomacy, 83-84. 

15 Richardson, Messages and Papers of the Presidents, I, 327. 



64 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [64 

the one side — of peace on the other." Such a position was to 
him ridiculous. "It is impossible/' he maintained, "to conceive 
the idea, that one nation can be in full war with another, and 
this other not in the same state with respect to its adversary. 
The moment that two nations are, in an absolute sense, at war, 
the public force of each may exercise every act of hostility, 
which the general laws of war authorize, against the persons and 
property of the other. As respects this conclusion, the distinc- 
tion is only material to discriminate the aggressing nation from 
that which defends itself against attack. The war is offensive 
on the part of the state which makes it; on the opposite side it 
is defensive ; but the rights of both, as to the measures of hostil- 
t ity, are equal." Hamilton then went on to explain the consti- 
tutional phrase granting to Congress the power to declare war, 
"the plain meaning of which," he said, "is that it is the peculiar 
and exclusive province of Congress, when the nation is at peace, 
to change that state into a state of war, whether from calcula- 
tions of policy, or from provocations, or injuries received : in 
other words, it belongs to Congress only, to go to War. But 
when a foreign nation declares, or openly and avowedly makes 
war upon the United States, they are then by that very fact al- 
ready at war, and any declaration on the part of Congress is 
nugatory ; it is at least unnecessary. This inference is clear 
in principle, because it is self-evident, that a declaration by one 
nation against another, produces at once a complete state of war 
between both, and that no declaration on the other side can at 
all vary their relative situation ; and in practice, it is well known, 
' that nothing is more common than when war is declared by one 
j party, to prosecute mutual hostilities without a declaration by 
the other." " 

Congress felt somewhat as did Hamilton, that a declaration of 
war would be a useless formality against a horde of pirates, as 
the Barbary Powers were considered; but to remove the Presi- 
dent's scruples, an act was passed empowering him to proceed 
with hostilities.^^ 

Jefferson himself was evidently not convinced by the argu- 
ment of Hamilton, for in 1805, in a confidential message to Con- 
gress with regard to the Spanish depredations on United States 

16 Works of Alexander Hamilton, VII, 201-204. 

17 McMaster, History of the People of the United States, III, 201; Act 
of Mar. 26, 1804. Annals of Cong., 8 Cong., 1 Sess., App., 1301. 



65] POWER OF DEFENSE 65 

territory, he again asserted the doctrine that only by authority 
of Congress could any hostile act be performed, beyond the 
strictest necessities of self-defense. Altho the Spaniards had 
authorized the inference that it was their intention to advance 
on our possessions, Jefferson wrote : ' ' Considering that Congress 
alone is constitutionally invested with the power of changing 
our condition from peace to war, I have thought it my duty to 
await their authority for using force in any degree which could 
be avoided. I have barely instructed the officers stationed in the 
neighborhood of the aggressions, to protect within the borders 
actually delivered to us, and not to go out of them but when 
necessary to repel an inroad, or to rescue a citizen, or his proper- 
ty. ' ' ^^ Congress took no action beyond referring the message to 
a committee, and hence the inactive and undecided attitude of 
the government continued.^^ 

In 1818 the question as to the extent of the power of defense 
came before the administration in a different and more extreme 
form. President Monroe strongly asserted his right to take 
defensive measures against the Indians in the South, even to 
the extent of pursuing them across the border into Florida, at 
that time a Spanish possession. "The inability of Spain," he 
said, "to maintain her authority to fulfill the treaty (of 1795), ^^ 
ought not to expose the United States to other and greater in- 
juries. "When the authority of Spain ceases to exist there, the 
United States have a right to pursue their enemy on a principle 
of self-defense. . . To the high obligations and privileges of 
this great and sacred principle of self-defense will the move- 
ment of our troops be strictly conj&ned. ' ' Acting on these prin- 
ciples, the President had given General Jackson orders which 
clearly authorized him to enter Florida, but only in the pursuit 
of the Indians, and had carefully instructed him in that case 
"to respect Spanish authority wherever it is maintained," and 
"to withdraw his forces from the province as soon as he shall 
have reduced that tribe to order. . . " ^^ 

18 ^m. State Papers, For. Bel., II, 613; Annals of Cong., 9 Cong., 
1 Sess., 18-19. 

1^ Annals of 'Cong., 9 Cong., 1 Sess., 947. 

20 Spain had bound herself in this treaty to restrain the Indians from 
committing hostilities against the United States. 

21 Message to Congress, Mar. 25, 1818. Am. State Papers, Mil. Affairs, 
I, 681; of. Jackson's defense of himself. Ibid., 755-757. 



I ^ 



66 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [66 

General Jackson accordingly carried the campaign against 
the Indians into Florida, but in so doing came into conflict with 
the Spanish authorities, and even stormed a Spanish fort and 
occupied Pensacola. When the subject of his transaction came 
before the Cabinet for deliberation, John Quincy Adams argued 
strenuously in support of the proposition that Jackson's acts 
were justified as purely defensive measures. "My opinion is," 
he said, "that there was no real, though an apparent, violation 
of his instructions; that his proceedings were justified by the 
necessity of the case, and by the misconduct of the Spanish 
commanding officer in Florida. The question is embarrassing 
and complicated, not only as involving that of actual war with 
Spain, but that of the Executive power to authorize hostilities 
without a declaration of war by Congress. There is no doubt 
that defensive acts of hostility may be authorized by the Execu- 
tive; but Jackson was authorized to cross the Spanish line in 
pursuit of the Indian enemy. My argument is that the question 
of the constitutional authority of the Executive is precisely 
there ; that all the rest, even to the order for taking the Fort of 
Barrancas by storm, was incidental, deriving its character from 
its object, which was not hostility to Spain, but the termination 
of the Indian war." Jackson's justification was the eminently 
practical one that an imaginary boundary line could not afford 
protection to our frontiers from the Indians in Florida, that the 
Spanish authorities had interfered with the success of his cam- 
paign, and that all his operations were founded on those con- 
siderations. This argument appealed to Adams, who said that 
"everything he did was defensive; that as such it was neither 
war against Spain nor a violation of the Constitution. ' ' ^^ 

This seemed to be a rather extreme view of what constitutes a 
"defensive measure," and Adams was unable to convince the 
President and the other members of the Cabinet, all of whom 
were of the opinion that Jackson had acted not only without, 
but against his instructions ; and that he had committed war 

22 Memoirs of John Quincy Adams. TV, 108, 111. About a year later, 
Adams advised the President that the occupation of Florida, a measure 
then proposed, would be "in itself an act of war. It may very probably 
involve us in a real and very formidable war." He very frankly admits, 
however, that this opinion did not reflect his real views, but was given 
in order to secure just that result, since he had discovered that his ad- 
vice usually resulted in the opposite action being taken. MeTnoirs, TV, 450. 



67] POWER OF DEFENSE 67 

upon Spain, which could not be justified and must be disavow- 
ed by the administration. The President supposed, however, 
that there might be circumstances which would have justified 
such measures as Jackson had taken, but that he had not made 
out his case.^^ 

President Wilson's despatch of a punitive expedition into 
Mexico after the Columbus raid in March, 1916, involved the 
exercise of powers of defense similar to those claimed by Mon- 
roe in 1818. The expedition was thought to be necessary in or- 
der to protect the United States against bandit raids which 
events had apparently shown the Mexican government too weak 
to suppress. In a statement to the press. President Wilson an- 
nounced that the expedition would have the "single object" of 
capturing Villa and putting a stop to his forays. ''This," he 
said, "can and will be done in entirely friendly aid of the con- 
stituted authorities in Mexico and with scrupulous respect for 
the sovereignty of Mexico."^* Tho the expedition later in- 
volved threatening complications with the Mexican authorities, 
and even some encounters with Mexican troops that resulted in 
bloodshed,^^ it has been justified on the ground that "the 
President was in this instance but performing his constitutional 
function of repelling invasion. ' ' ^^ 

The President has also in another way shown himself able 
to exercise important powers of defense without express author- 
ization from Congress. When the difficulty with France reach- 
ed a crisis in 1798, President Adams announced to Congress that 
he had revoked his former instructions to collectors not to per- 
mit the sailing of armed merchant vessels, and thereby indirect- 
ly authorized the arming of such vessels as a measure of de- 
fense.^^ This exercise of executive power was opposed by Jef- 
ferson, who looked upon it as a measure leading to war and pro- 
posed that there should be "a Legislative prohibition to arm 
vessels instead of the Executive one which the President informs 
them he has withdrawn. ' ' ^^ 

^^lUd., 108. 

24 See Am. Jour. Int. Law. X, Supp., 180, 184. 

25 For a brief account, see Ogg, National Progress, 297-299. 

26 Corwin, The President's Control of Foreign Relations, 163, n. 

27 Message of Mar. 19, 1798. Eichardson, op. cit., 1, 265. 

28 Jefferson to Monroe, Mar. 21, 1798. Writings of Thomas Jefferson, 
VII, 221. 



68 WAR POWERS OP THE EXECUTIVE IN UNITED STATES [68 

That suggestion was favored also by Madison, who denounc- 
ed the action of the President as a usurpation of power. ''The 
first instructions," he said, "were no otherwise legal than as 
they were in pursuance of the Law of Nations, and consequently 
in execution of the law of the land. The revocation of the in- 
structions is a virtual change of the law, & consequently a 
usurpation by the Ex. of a legislative power. It will not avail 
to say that the law of Nations leaves this point undecided, & 
that every nation is free to decide for itself. If this be the case, 
the regulation being a Legislative not an Executive one, belongs 
to the former, not the latter Authority; and comes expressly 
within the power, 'to define the law of Nations,' given to Con- 
gress by the Constitution. ' ' ^^ 

"While the right of the President to authorize the arming of 
merchant vessels for defense was thus disputed, the seriousness 
of such action was not questioned even by his supporters, but 
on the other hand, it was frankly admitted to be a step leading 
to war,^° 

More recently the President's right to exercise this power of 
arming merchant vessels for defense again became a sharp is- 
sue. Germany having announced the renewal of her ruthless 
submarine warfare. President Wilson went before Congress 
February 26, 1917, and asked for authority "to arm our mer- 
chant vessels with defensive arms should that become necessary, 
and with the means of using them, and to employ any other in- 
strumentalities or methods that may be necessary and adequate 
to protect our ships and our people in their legitimate and peace- 
ful pursuits on the seas." While thus requesting express au- 
thority, the President at the same time announced that he con- 
sidered himself as already possessing that authority "without 
special warrant of law, by the plain implication of my consti- 
tutional duties and powers." He said, however, that he pre- 
ferred under the circumstances not to act upon such general 
implication, but wished to feel "that the authority and power 

29 Madison to Jefferson, Apr. 2, 1798. Writings of James Madison, VI, 
313. Cf. Constitution, Art. I, Sec. 8, CI. 10. 

30 William Vans Murray, minister at The Hague, wrote as follows to 
John Quincy Adams, June 1, 1798: "1 have seen the circular, it permits 
arming in defence. It was all that the President could authorize, but it is 
war." Beport, Am. Hist. Assn. 1912, 416. 



69] POWER OF DEFENSE 69 

of the Congress are behind me in whatever it may become neces- 
sary for me to do. ' ' ^^ 

The bill granting the authority asked for was favored by an 
overwhelming majority in both houses of Congress, but was de- 
feated by a filibuster in the Senate, the measure being opposed 
principally on the ground that it was a step leading to war, and 
therefore a delegation of the war-making power of Congress to 
the President. The view of this "little group of willful men" 
— as they were characterized by President Wilson in a public 
statement — was perhaps best expressed by Senator Stone (Mis- 
souri), when he said: "This bill, if enacted, would confer pow- 
er upon the President to initiate war, if he should so desire or 
determine, and to do that supremely solemn thing without first 
submitting the choice of war or peace to Congress." Re- 
garding the President's claim to that power without express 
authorization, he said: "I can not consent that this clause (i. e., 
the clause of the Constitution giving the President power to 
execute the laws) confers, or was ever intended to confer, power 
upon the President to determine an issue between this Nation 
and some other sovereignty — an issue involving questions of in- 
ternational law — and to authorize him to settle that law for 
himself, and then proceed to employ the Army and Navy to 
enforce his decision. ' ' ^^ 

In spite of the failure of Congress to grant his request for ex- 
press authority, President Wilson, still convinced of his own 
power, and fortified not only by the known sentiments of the 
majority in Congress but also by the advice of his Secretary of 
State and Attorney General,^^ gave formal notice on March 12 

31 N. Y. Times Current Hist. Mag., VI, 48. 

32 Cong. Eecord, LIV, Pt. 5 (64 Cong., 2 Sess.), 4878, 4884. 

33 iV. T. Times Current Hist. Mag., VI, 55-56. An act of Mar. 3, 1819, 
provided that any merehant vessel of United States registry might, by 
armed force, oppose or defend against "any aggression, search, restraint, 
depredation, or seizure," attempted by any other merchant vessel or "any 
armed vessel whatsoever, not being a public armed vessel of some 
nation in amity with the United States." This act, still in force, was 
held by some to forbid) the action contemplate^ by the President, since 
Germany was still officially a nation "in amity with the United States." 
Secretary Lansing and Attorney General Gr'egory advised the President, 
however, that the statute had been enacted with reference to protection 
against the pirates of that time and could not be held to apply to the pres- 



70 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [70 

of his determination "to place upon all American merchant 
vessels sailing through the barred areas an armed guard for the 
protection of the vessels and the lives of the persons on board." 
Accordingly, a large number of merchant vessels were equipped 
with six-inch guns and gunners from the United States Navy- 
were assigned to man them, supposedly with instructions not 
to await an attack by a submarine, but to fire at sight, the pres- 
ence of a submarine presupposing its hostile intent. ^^ 

The expedient of armed neutrality so adopted by the Execu- 
tive as a measure of defense merely, was later acknowledged by 
President Wilson himself, in his war address of April 2, to be 
not only ' ' impracticable ' ' and ' ' ineffectual enough at best, ' ' but 
under the circumstances even "worse than ineffectual" and 
"practically certain to draw us into the war without either the 
rights or the effectiveness of belligerents. " ^^ 

In 1846, the question of the President's powers of defense 
was raised in an even more complicated and contentious form. 
The events leading up to the Mexican War involved the question 
of the President's power to recognize a state of war as already 
existing, and thereby begin defensive measures without author- 
ization from Congress. They also illustrate to what extent hos- 
tile acts may be performed by a vigorous President in bringing 
about such a state of war, and how far operations may be con- 
ducted in the name of ' ' defense. ' ' 

General Taylor had been sent, after the annexation of Texas, 
to occupy the disputed territory beyond the Nueces River, with 
instructions, however, — so the President said — "to abstain 
from all aggressive acts toward Mexico or Mexican citizens, and 

ent circumstances. See the act in Annals of Cong., 15 Cong., 2 Sess., II, 
App., 2523. 

34 iV. Y. Times Current Hist. Mag. VI, 56. "Because submarines are in 
effect outlaws when used as the German submarines have been used against 
merchant shipping, it is impossible to defend ships against their attacks 
as the law of nations has assumed that merchantmen would defend them- 
selves against privateers or cruisers, visible craft giving chase upon the 
open sea. It is common prudence in such circumstances, grim necessity, in- 
deed, to endeavor to destroy them before they have shown their own in- 
tention. They must be dealt with upon sight, if dealt with at all." Ad- 
dress to Congress, Apr. 2, 1917. McKinley, Collected Materials for the Study 
of the War (1st ed.), 13. 

S5 McKinley, op. cit., 14. 



71] POWER OF DEFENSE 71 

to regard the relations between that Republic and the United 
States as peaceful unless she should declare war or commit acts 
of hostility indicative of a state of war. ' ' ^® President Polk, 
however, had also, in the fall of 1845, instructed Taylor that the 
crossing of the Del Norte by the Mexican army was to be regard- 
ed as an act of war, and in that event he should not wait to be 
attacked, but should attack first. Moreover, he was not only to 
drive the invaders back across the river, but he was vested with 
discretionary authority to pursue the Mexican army into Mexi- 
can territory, and to take Matamoras or any other post on that 
side of the river, with only the caution "not to penetrate any 
great distance into the interior of Mexican Territory." Like- 
wise Commodore Conner, commanding the American squadron 
in the Gulf of Mexico, was instructed in a similar event to block- 
ade all the Mexican ports on the Gulf, and to attack and take 
them if practicable, excepting only Yucatan and Tobasco, which 
had been reported as against the threatened war with the Uni- 
ted States.^'' 

The President evidently held none of Jefferson's timid views 
with regard to the Executive's powers of defense. Polk expect- 
ed war, he was indeed fully determined on war, but meant that 
the war should be ' ' defensive ' ' on the part of the United States. 
He had no intention, however, of limiting such a war of defense 
to merely repelling invaders. Polk did make inquiry of one of 
his friends in Congress (Senator Bagby of Alabama) as to the 
necessity or propriety of calling Congress, in the event of a 
declaration of war or an invasion of Texas by Mexico, and was 
plainly relieved when the Senator gave it as his ''clear opin- 
ion" that Congress should not be called.^^ 

Having thus manipulated the situation so that actual hostil- 
ities were finally precipitated on the morning of April 25, Presi- 
dent Polk thus summed up the situation in his message of May 
11, 1846: "After reiterated menaces, Mexico has passed the 
boundary of the United States, has invaded our territory, and 
shed American blood upon the American soil. She has pro- 
claimed that hostilities have commenced, and that the two na- 
tions are now at war. As war exists, and, notwithstanding all 

36 Richardson, op. cit., IV, 441. 

37 Diary of James K. Folk, I, 9, 12. 
ssIMd., 1, 13. 



72 WAE POWERS OF THE EXECUTIVE IN UNITED STATES [72 

our efforts to avoid it, exists by the act of Mexico herself, we 
are called upon by every consideration of duty and patriotism 
to vindicate with decision the honor, the rights, and the interests 
of our country. . . In further vindication of our rights and 
defense of our territory, I invoke the prompt action of Congress 
to recognize the existence of war, and to place at the disposition 
of the Executive the means of prosecuting the war with vigor, 
and thus hastening the restoration of peace. ' ' ^^ 

Even before the President asked Congress thus to "recognize 
the existence of war," his instructions of the year before had 
been carried out, two battles had been fought,*" and the war 
was already being carried on — without any declaration or au- 
thorization by Congress. In Congress, in fact, the President's 
statement that "war exists by act of Mexico," and his conse- 
quent assumption that the war would be a "defensive" one, 
were not accepted without dispute. Senator Benton, for exam- 
ple, was willing to vote men and money for defense of American 
territory, but was not prepared to make aggressive war on Mex- 
ico. He left it to be inferred that he did not think the territory 
of the United States extended west of the Nueces Eiver, and 
therefore he had not approved Taylor's occupation of the re- 
gion.*^ 

Mr. Morehead (of Kentucky) denied that war could exist 
without some prior action on the part of Congress. ' ' If war does 
now exist," he said, " — if the people of the United States now 
find themselves in a state of war with Mexico, it is a war which 
has not been brought about or declared by the legislative de- 
partment of the United States, to which constitutionally the pow- 
er of declaring war belongs. The President of the United States 
has no constitutional power to involve the nation in war. But 
if war does exist at this time between the United States and 
Mexico, it may follow that the President of the United States 
may involve the country in war without the assent of the legis- 

39 Richardson, op. dt., IV, 442, 443. 

40 Palo Alto and Resaca de la Palma, on May 8 and 9, respectively. 

*^ Diary of James K. Polk, I, 390. Benton also suggested that a peace- 
able adjustment might be had, referring to the proclamation of the Presi- 
dent ad interim of Mexico denying his own right to declare war but leav- 
ing it to the consideration of the Mexican Congress. See Benton's Abridg- 
ment of the Debates of Congress, XVj 499. 



73] POWER OF DEFENSE 73 

lative department of the Government."*^ Mr. Archer (of Vir- 
ginia) likewise declared that the intervention of Congress was 
absolutely indispensable to constitute war, that the existence of 
hostilities on one of the frontiers of the United States did not 
necessarily put us in a state of war with a foreign power ; that 
the President's statement could not alone be accepted as indicat- 
ing a state of war, since an investigation might show the state 
of things on the Rio Grande to be misunderstood and the Mexican 
authorities to have acted justifiably; that if the President's 
statement were to be accepted as a legal and constitutional ac- 
ceptation of a state of war, then the officers and men on the Rio 
Grande might involve the country in war at their pleasure.*^ 

The most vigorous assailant of the President 's declaration was 
Calhoun, who insisted that ' ' in the sense of the Constitution war 
could be declared only by Congress," that only through its au- 
thority could the state of things called ''war" be announced to 
the country and the world. ' ' "War must be made, ' ' he said, ' ' by 
the sovereign authority, which in this case, were the Mexican 
Congress, on the one side, and the American Congress, on the 
other. The President of Mexico could not make war. It could 
be done only by the two countries. Even if the two Presidents 
had declared war, the nations could disavow the act." He de- 
clared it was "monstrous" that he should be asked to affirm 
''that a local rencontre, not authorized by the act of either Gov- 
ernment, constituted a state of war between the Government of 
Mexico and the Government of the United States — to say that, 
by a certain military movement of General Taylor and General 
Arista, every citizen of the United States was made the enemy 
of every man in Mexico. . . It stripped Congress of the 
power of making war; and, what was more and worse, it gave 
that power to every officer, nay, to every subaltern commanding 
a corporal 's guard. ' ' ** 

The President was, of course, not lacking in supporters, 
among them General Cass, who took direct issue with Calhoun. 
"There can be no hostilities undertaken by a government," he 
said, "which do not constitute a state of war. War is a fact, 
created by an effort made by one nation to injure another. One 

42 Benton's Debates, XV, 489, 492. 

43 Ibid., 489, 490. 
44/&td., 491, 497, 500. 



74 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [74 

party may make a war, though it requires two parties to make a 
peace. ' ' While admitting that Congress alone has a right to de- 
clare war, and that "no authority but Congress can commence 
an aggressive war," yet he asserted that another country "can 
commence a war against us without the co-operation of Con- 
gress," that it can, "at its pleasure, terminate the relations of 
peace with us, and substitute for these the relations of war, with 
their legitimate consequences. War may be commenced with or 
without a previous declaration. It may be commenced by a 
manifesto announcing the fact to the world, or by hostile attacks 
by land or sea." Whether or not the disputed territory right- 
fully belonged to the United States or to Mexico made no differ- 
ence, in the opinion of Cass. The ultimate claim to the country 
was a matter for diplomatic adjustment, but the United States 
was meanwhile in possession, and any attempt to dislodge her 
forces was an act of aggression and an act of war. Hence he 
argued that the war became for the United States one of 
defense.*^ 

Under the stress of the patriotic feelings aroused by the shed- 
ding of American blood, and under the plea that the war was 
strictly one of defense. Congress sustained the President, rec- 
ognized a state of war as already existing by act of Mexico, and 
authorized the carrying on of hostilities.*^ The House of Rep- 
resentatives, about two years later, passed a resolution "that the 
war was unnecessarily and unconstitutionally begun by the 
President of the United States. '' " 

Lincoln's proclamation of blockade of the Southern ports in 
April, 1861, again raised the question of the President's power 
to recognize the existence of a state of war without a declaration 
by Congress. The situation was all the more peculiar, in that 
this was not a foreign war, but an insurrection, and therefore a 
blockade of the Southern ports was really a blockade of the na- 
tion's own ports, something unknown to international law. 
Nevertheless, the Supreme Court, in the decision of the Prize 

45 Benton's Debates, XV, 503, 504. 

46 Act of May 13, 1846. 9 Stat, at L., 9. 

47 See amendmenti of Mr. Ashmun to resolution of thanks to Gen. Tay- 
lor, adopted Jan. 3, 1848. On Feb. 14, 1848, the House tabled a motion to 
expunge this amendment from the Journal. Cong. Gloie, 30 Cong., 1 Sess., 
95, 343-344. 



75] POWER OF DEFENSE 75 

Cases already referred to, sustained the validity of the Presi- 
dent's action, and asserted his right to recognize a state of war 
as already existing, and to take measures of defense in advance 
of Congressional authority. ''A civil war is never solemnly de- 
clared," said the Court, ''it becomes such by its accidents — the 
number, power, and organization of the persons who originate 
and carry it on. . . As a civil war is never publicly pro- 
claimed eo nomine against insurgents, its actual existence is a 
fact in our domestic history which the Court is bound to notice 
and to know. The true test of its existence . . . may be 
thus summarily stated: When the regular course of justice is 
interrupted by revolt, rebellion, or insurrection, so that the 
Courts of Justice cannot be kept open, civil war exists and hostil- 
ities may be prosecuted on the same footing as if those opposing 
the Government were foreign enemies invading the land. ' ' The 
Court held that the question of fact as to when an insurrection 
has reached such alarming proportions as to be called a war and 
the insurgents to be accorded the character of belligerents, is a 
question to be decided by the President in his capacity as Com- 
mander-in-Chief. The Court would be governed by the decisions 
and acts of the political department to which the power was en- 
trusted. "The proclamation of blockade," said the Court, "is 
itself official and conclusive evidence to the Court that a state 
of war existed which demanded and authorized a recourse to 
such a measure under the circumstances peculiar to the case. ' ' ^^ 
The Court thus in effect held that, while the existence of a state 
of war was necessary to the validity of a blockade, the fact that 
a blockade had been proclaimed was proof that a state of war 
existed; and the President having authority to proclaim the 
blockade, was thereby empowered to declare the existence of a 
war, and bind the Court and the country to his declaration. 

Four justices, including Chief-Justice Taney, dissented 
vigorously from this opinion. They argued that, altho Con- 
gress had conferred upon the President authority to meet sud- 
den emergencies — to repel invasions and suppress insurrec- 
tions — that authority did not invest him with the war power. 
If so, they maintained, then we are in a state of war every time 
a military force is called out, ' ' for the nature of the power can- 

^^Trise Cases, 2 Black, 635, 666, 667, 670 (1862). 



76 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [76 

not depend upon the numbers called out." "The Acts of 1795 
and 1807," they said, ''did not, and could not under the Consti- 
tution, confer on the President the power of declaring war 
against a State of this Union, or of deciding that war existed. . . 
This great power is reserved to the legislative department by 
the express words of the Constitution, and cannot be delegated 
or surrendered to the Executive." The minority held, there- 
fore, that if the insurrection were to be placed on the footing 
of a war, within the meaning of the Constitution, and be accord- 
ed belligerent rights under international law, it must be recog- 
nized or declared as a war by the war making power of the Gov- 
ernment, that is, by Congress, ''There is no difference in this 
respect, ' ' said the justices, ' ' between a civil and a public war. ' '*^ 

Such an eminent authority as Professor Willoughby is inclin- 
ed to agree with the minority rather than with the majority of 
the Court. He says that while all nations have the power and 
right, in case of a civil contest in another State, to determine 
whether the struggle is to be treated as a war and the contestants 
as belligerents, yet the State concerned is not bound by such 
action and may continue to treat the insurgents as rebels. There- 
fore, he says, "it would seem that, in the United States, from the 
constitutional viewpoint, it should lie with the war-declaring 
power, that is, with Congress, to determine when the civil strug- 
gle should be recognized as a war. ' ' ^° 

Whether or not we agree with Professor Willoughby and the 
minority of the Court as presenting the most logical argument 
from a strictly constitutional standpoint, the decision of the 
majority stands as law in the United States, as it also represents 
the more practical point of view. The Constitution, made as it 
was by practical men who had just emerged from a long, hard 
struggle of defense, must be construed as giving the power to 
take measures for defense as quickly as those measures may be 
needed. While the decision of the Court in this case upheld 
particularly the President's power to recognize an insurrection 
as a " state of war ' ' and undertake the necessary defensive meas- 
ures in that case without authority from Congress, the principle 
has also been held to apply to foreign wars as well. ' ' In fact, ' ^ 
says one authority, "according to the terms of the judicial de- 

i^ Prise Cases, 2 Black, 688-689, 690-693. 
60 "Willougliby, Constitutional Law, II, 797. 



77] POWER OF DEFENSE 77 

cision just cited, a President who conducts affairs with a foreign 
power, so as skillfully to lead it to attack the United States, can 
always engage the action of the country and inaugurate defen- 
sive war. In a word, his remaining on the defensive is all that 
is required to authorize him to act. ' ' ^^ 

It has been noted how the power of defense has been assumed 
and asserted by the Executive, in varying degree, as a necessary 
and inherent function of his office. The law and practise are 
thus in accord as to the nature and location of the power. "With 
regard to the extent to which the President may constitutionally 
exercise this power of defense, Professor Corwin draws an 
analogy between this Presidential power and the right of a state 
under international law to self-preservation, and concludes that 
while the power is theoretically reserved for "grave and sud- 
den emergencies," in practise it is limited only by the "powers 
of Congress and public opinion. ' ' ^^ 



51 Chambrun, The Executive Power, 121-122. Cf. McClain, Constitutional 
Law in the United States, 190; Schouler, Constitutional Studies, 139; Ogg 
& Beard, National Governments and the World War, 102; Senate Document 
No. 56, 54 Cong., 2 Sess., 5. 

52 The President 's Control of Foreign Belations, 156. 



CHAPTER V 

POWERS WITH REGARD TO A DECLARATION OF WAR 

The Constitution gives to Congress the power ''to declare war, 
grant letters of marque and reprisal, and make rules concern- 
ing captures on land and water. ' ' ^ Those functions were not 
granted to Congress as a matter of course, but only after much 
serious thought and discussion. The Congress under the Con- 
federation had the "sole and exclusive right and power of de- 
termining on peace and war ; " ^ but the decision in the Con- 
vention of 1787 to create separate and distinct departments of 
government in pursuance of Montesquieu's theory of the sep- 
aration of powers, opened up anew the whole matter of the prop- 
er functioning of each department, including the question of 
the proper depository for the war-making functions. 

Hamilton had suggested, in his plan presented quite early 
in the course of the Convention,^ that the power of declaring 
war should be vested exclusively in the Senate,* but the report 
of the Committee of Detail gave to the Legislature as a whole 
the power ' ' to make war. ' ' ^ When this clause came up for 
consideration on August 17, it became a subject for warm de- 
bate. Mr, Pinkney opposed vesting the power in the Legislature, 
whose proceedings he said were too slow ; the House of Represen- 
tatives he thought too numerous a body for such deliberations ; 
and hence he agreed with Hamilton that the Senate was the best 
depository.*^ Mr. Butler thought the objections against the Leg- 

1 Art. I, See. 8, CI. 11. 

2 Articles of Confederation, Art IX, in Macdonald's Documentary 
Source-Boole of American History, 199. 

3 June 18. 

^Madison's Journal (Hunt ed.), I, 163. 

5 Ibid., II, 82. 

6 Pinkney had earlier in the Convention (June 1) expressed his fear of 
extending the "powers of peace and war" to the Executive, which he said 

78 



79] POWERS WITH REGxVRD TO A DECLARATION OF WAR 79 

islature would operate in great degree also against the Senate, 
and favored vesting the power in the President, "who will have 
all the requisite qualities and will not make war but when the 
nation will support it." Mr. Sherman, on the other hand, 
thought the Executive should not be able to commence war ; and 
Mr. Gerry "never expected to hear in a republic a motion to 
empower the Executive alone to declare war." Mr. Mason like- 
wise thought the Executive was not safely to be trusted with 
the war power, nor was the Senate in his opinion so constructed 
as to be entitled to it. "He was for clogging rather than fa- 
cilitating war ; but for facilitating peace. " As a final conclusion, 
the word "declare" was substituted for the word "make," and 
the power "to declare war" was entrusted to the Legislative 
body.'^ 

It seemed evident to the makers of the Constitution that a 
power involving such tremendous consequences must in a repre- 
sentative government rest with the body most directly repre- 
sentative of the people. To vest the power of declaring war in 
the Executive savored too much of monarchy and of old-world 
institutions. Few have disputed the wisdom of that theory, few 
would do so today. Nevertheless, such an intense American as 
John Quincy Adams, spoke in 1817 of the provision which con- 
fers upon the legislative the power of declaring war as "that 
error in the Constitution" and a piece of "clumsy political ma- 
chinery." He thought that, in the theory of government ac- 
cording to Montesquieu and Rousseau, the power of declaring 
war is "strictly an Executive act." ^ 

It is believed that a brief examination will show, that tho the 
power to begin war through a formal declaration is clearly and 
definitely gramod to Congress, the President is by no means 
excluded from all share in such declaration. A declaration of 
war is a simple legislative act, going through the same proced- 
ure as any other legislative measure, and requiring no extraor- 
dinary majority for its passage.^ The President has therefore 

would render the Executive a ''monarchy of the worst kind, to wit, an 
elective one." Madison's Journal (Hunt ed.), II, 49. 

7 For the debate on this entirei proposition, see Ibid., II, 187-189 ; Far- 
rand 's Records of the Federal Convention, II, 318-320. 

«> Memoirs of John Quincy Adams, IV, 32; but cf. XII, 51. 

9 It is rather curious to note that Jefferson was for a time under the 



80 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [80 

all the rights and powers in connection with a declaration of 
war that he has with regard to matters of ordinary legislation. 
Judge Baldwin ^" remarks that there may be said to be three 
stages in a declaration of war: (1) Doings of the President in 
informing Congress of the state of relations with the Power 
against which war may be declared; (2) doings of Congress in 
making the declaration; and (3) approval of the declaration by 
the President. 

In the first place, then, the President, under the constitutional 
provision requiring that he "shall from time to time give to 
the Congress information of the state of the Union, and recom- 
mend to their consideration such measures as he shall judge 
necessary and expedient, " ^^ is empowered to recommend a 
declaration of war, first communicating to Congress the facts 
and circumstances that in his opinion call for such declaration. 
The President, through this power of giving information to 
Congress and of recommending measures to be taken, may large- 
ly influence that body in determining upon war or peace. He 
may withhold certain information, the disclosure of which would 
vitally affect the action of Congress. He may, if he is desirous 
of war, reveal only such information as will tend to inflame 
congressional opinion, or he may select a moment for his dis- 
closures and recommendations when opinion is excited and ready 
to hear the worst. 

Thus Jefferson charged that President Adams "kept out of 
sight in his speech" (of May 16, 1797) ^^ Spanish protests and 
demands, and ' ' thereby left it to be imagined that France is the 
only power of whom we are in danger ; ' ' that the Executive had 
war in contemplation, with the expectation that the legislature 
"might catch the flame;" that the convocation of Congress^^ 

impression that a two-thirds majority was required to pass a declaration of 
war. He later admitted his error on this point. Writings of Tlwmas Jef- 
ferson, VII, 220, 222, 243-244. The New York ratifying convention of 
1788 proposed an amendment requiring a two-thirds majority of each house 
to declare war, and a similar amendment was proposed by the Hartford 
Convention in 1814, neither of which received any serious consideration. 
See The Federalist (Ford ed.), Appendix, 643, 689. 

10 S. E. Baldwin, ' ' The Share of the President in a Declaration of War, ' ' 
Am. Jour. Int. Law, XII, 1-14. 

11 Art. II, Sec. 3. 

12 Eichardson, Messages and Papers of the Presidents, 1, 233-239. 

13 Congress had been summoned to meet in special session May 15, 1797. 



81] POWERS WITH REGARD TO A DECLARATION OF WAR 81 

was in fact only "an experiment on the temper of the Nation, 
to see if it was in unison. ' ' ^* Both Jefferson and Madison charg- 
ed that the X Y Z correspondence was laid before Congress for 
the particular purpose of arousing the war temper of that body 
and of the country. In his message of March 19, 1798,^^ the 
President, without revealing the content of the famous despatch- 
es, spoke pessimistically about the accomplishments of the mis- 
sion to France, urged the adoption of defensive measures, and 
announced the action he himself proposed to take. Referring to 
this message, Madison wrote : ' ' The Constitution supposes, what 
the History of all Governments demonstrates, that the Executive 
is the branch of power most interested in war, and most prone 
to it. It has accordingly with studied care, vested the question 
of war in the Legislature. But the Doctrines lately advanced ^® 
strike at the root of all these provisions and will deposit the 
peace of the Country in that Department which the Constitu- 
tion distrusts as most ready without cause to renounce it. For if 
the opinion of the President," not the facts and proofs them- 
selves, are to sway the judgment of Congress in declaring war, 
. . . it is evident that the people are cheated out of the best 
ingredients in their Government, the safeguards of peace which 
is the greatest of their blessings." ^^ 

Madison was equally vigorous in referring to the actual revela- 
tion of the famous papers. "It is easy to foresee," he wrote, 
"the zeal and plausibility with which this part of the despatch- 
es will be inculcated, not only for the general purpose of en- 
forcing the war measures of the Executive, but for the particu- 

14 Writings of Thomas Jefferson, VII, 126, 138-139, 146, 148-149. 

15 Richardson, op. cit., I, 264-265. 

16 Madison evidently refers here to the proposed measures of defense, 
especially the announcement of Adams that armed merchantmen of the 
United States would now be permitted to sail, whereas before the .collec- 
tors had instructions to hold such vessels in port. See Eichardson, op. cit., 
I, 265; also supra, 67-68. 

17^ Adams had expresed his opinion, formed from an examination of the 
correspondence, that the objects of the mission to France could not be 
accomplished "on terms compatible with the safety, the honor, or the es- 
sential interests of the nation," and that the nation should prepare for 
defense. Eichardson, op. cit., I, 264. It should be remembered that the 
correspondence had not yet been laid before Congress. 

18 Writings of James Madison, VI, 312-313. 



82 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [82 

lar purpose of diverting the public attention from the more im- 
portant part, which shows the speech and conduct of the Presi- 
dent to be now the great obstacle to accommodation. . . The 
readiness with which the papers were communicated and the 
quarter proposing the call for them/^ would be entitled to praise 
if a mass of other circumstances did not force a belief that the 
view in both was more to inflame than to inform the public 
mind. "20 

A study of the debates in Congress shows that Jefferson and 
Madison were not alone in their contention that the President 
was manipulating the situation and molding Congress to war. 
Mr. Livingston suggested that since Congress had been practical- 
ly called upon to decide between peace and war, it was entitled to 
see the whole correspondence. ' ' The right to judge what it was 
proper to publish in consideration of the public safety and in- 
terest, should not be transferred to the President, as he might 
withhold such parts of the papers as might prevent a correct 
judgment being formed upon them. ' ' ^^ Mr. Gallatin had op- 
posed the call for the papers and favored going ahead at once 
to determine on peace or war, since, as he said, **if it had first 
been determined to call for further information, how did he 
know that it would be given, or, if given, whether it would be in 
a mutilated state, rather than which he would choose to act with- 
out it upon the Message of the President alone. . . It was true, 
when the concessions were made known, it was possible that he 
might differ in opinion from the President as to their reasonable- 
ness; but this House has no control over the President in this 
respect. Therefore, the information which he has given to the 
House is sufficient for them ; and they ought now to say whether 
they will go to war or remain in peace, ' ' ^^ Many members ex- 
pressed their belief that the President 's message was tantamount 
to a declaration of war against France.^^ 

19 The X Y Z correspondence was submitted to Congiess April 3, 1798, 
in response to a resolution of the House calling for the same, passed April 
2. See Annals of Cong., 5 Cong., II, 1370, 1371. 

20 Writings of James Madison, VI, 316; cf. Writings of Thomas Jeffer- 
son, VII, 235-236. 

21 Annals of Cong., 5 Cong., II, 1359. 
22iUd., 1363. 

23 See, for example, the remarks of Giles and Gallatin. Annals of Cong., 
5 Cong., II, 1323, 1364. 

I 



83] POWERS WITH REGARD TO A DECLARATION OF WAR 83 

In fact, the messages and actions of the President were con- 
sidered as so inflammatory of the war passions, that Mr. Sprigg 
of Maryland, in order to counteract that effect, proposed a reso- 
lution ''that it is not expedient for the United States to resort 
to war against the Eepublic of France. ' ' ^^ Such a negative 
resolution was very unusual, and its propriety was strongly ques- 
tioned, both in Congress and out.^^ Madison admitted that it 
was ''in ordinary cases . . . certainly ineligible," but he 
thought that eases might obviously arise for which it was prop- 
er: "1. Where nothing less than a declaration of pacific in- 
tentions from the department entrusted with the power of war, 
will quiet the apprehensions of the constituent body, or remove 
an uncertainty which subjects one part of them to the speculat- 
ing arts of another; 2. where it may be a necessary antidote to 
the hostile measures or language of the Executive Depart- 
ment . . . ; 3. where public measures or appearances may mis- 
lead another nation into distrust of the real object of them, the 
error ought to be corrected; and in our Government where the 
question of peace or war lies with Congress, a satisfactory ex- 
planation cannot issue from any other Department. ' ' ^^ Madison 
and a large number in Congress were convinced that an obvious 
case had arisen, that the President was deliberately trying to 
lead Congress into a declaration of war. 

"Whatever the truth in these charges against Adams, the above- 
mentioned resolution failed of passage, and it is clear that when 
the crisis was at its height in 1798, the President had brought 
matters to a point where "both Houses were safely committed to 
any policy of vigor which he would recommend. ' ' ^'^ The senti- 
ment of Congress was perhaps best expressed by Mr. Otis when 
he said that "the President having declared his opinion that 
there is no hope of success from that mission, he wished for noth- 
ing further to convince him of the propriety of going into the 
different defensive measures proposed. ' ' ^^ Under the Presi- 
dent 's leadership, therefore, acts of hostility were authorized,^^ 

24 Annals of Cong., 5 Cong., II, 1319. 

25 See the debate on the resolution. Ibid., 1319-1357. 

26 Writings of James Madison, VI, 317-318. 

27 Bassett, The Federalist System, 237. 

2s Annals of Cong., 5 Cong., II, 1370. •- 

29 Acts of May 28 and July 9, 1798. Ibid., 5 Cong., Ill, App., 3733, 
3754. 



84 WAE POWERS OF THE EXECUTIVE IN UNITED STATES [84 

and for more than two years a "limited or imperfect war" was 
carried on.^° Even so, peace was undoubtedly ''the first 
object of the nation," as Jefferson had grudgingly acknowledg- 
ed,^^ no formal declaration was asked for or made, and Adams is 
generally credited with having "probably saved the country 
from war and from internal dissensions. ' ' ^^ Certainly there 
was not a moment during his entire administration when Adams, 
by a word, might not have secured from Congress a declaration 
of war. He refrained from speaking the word, and a disastrous 
war was avoided. 

President Jefferson was also able to prevent a declaration of 
war during his administration, tho under somewhat different 
circumstances. The long series of incidents arising from 
the strained relations with Great Britain had culminated on 
June 22, 1807, in the attack of the Leopard upon the Chesapeake. 
The country was aroused as it had not been since the battle of 
Lexington.^^ "Never," says an eminent historian, "had a more 
just cause for war been given to any people. Never had a people 
called more loudly for war. ' ' ^* 

Jefferson believed that it was strictly within the province of 
Congress to determine whether the outrage was a proper cause 
of war, and that the Executive should be careful not to perform 
any act that would commit Congress to a particular course. He 
might therefore have summoned Congress at once to meet in 
special session to consider the extraordinary situation that had 
arisen. Jefferson and his Cabinet knew, however, that were 
Congress to meet while the excitement was at its height, it would 
be difficult to prevent an immediate declaration of war, or at 
least some action that would hopelessly embarrass the negotiations 
about to begin at London. He hoped that a delay would bring 
cooler counsels and some chance for adjustment, that, "having 
taught so many useful lessons to Europe, we may . . . add 
that of showing them that there are peacable means of repress- 
ing injustice, by making it to the interest of the aggressor to do 

30 Bos V. Tingy, 4 Dall., 37 (1800) ; Gray v. United States, 21 Ct. of CI., 
340 (1886), in Scott's Cases on International Law, 452. 

31 Writings, VII, 149. 

32 Bassett, op. cit., 251; cf. also Bascom, Growth of Nationality, 26. 

33 Writings of Thomas Jefferson, IX, 105. 

34McMaster, History of the People of the United States, III, 262. 



85] POWERS WITH REGARD TO A DECLARATION OF WAR 85 

what is just, and abstain from future wrong. ' ' ^^ He therefore 
issued a proclamation setting forth the grievances of the United 
States and declaring the ports closed to the armed ships of Eng- 
land ;^^ but, under the pretence that Washington was too sickly 
a place for Congress to come to in the summer, its date for as- 
sembling was fixed at October 26.^'' 

The delay proved useful. The British government sent a 
minister to adjust the Chesapeake affair, recalled the Admiral 
who gave the order for the attack, and disavowed his act.^^ Thus 
Jefferson, if he did not succeed in finally averting a war with 
Great Britain, at least, by refusing to summon Congress at the 
moment of excitement, delayed the war for several years. 

President Madison aroused the war passion of Congress in 
1812 by submitting to it the "Henry correspondence," which 
aimed to show that Great Britain was attempting to sever the 
New England states from the Union.^^ The British Government 
denied any connection with the Henry mission ; no evidence was 
produced to show that the New England states had contemplated 
any plan of secession; and the Federalists charged that the en- 
tire affair had been trumped up by Madison in order to augment 
the feeling for war, evidence being produced to show that the 
President had paid $50,000 for the papers.*" Madison, however, 
was slow in taking advantage of the war passion he had thus 
aroused. Congress, now thoroly in favor of war, fumed and fret- 
ted at the delay, but hesitated to act without a recommendation 
from the President. Finally, a delegation from Congress, headed 
by Clay, waited upon the President and declared the readiness 
of the majority in Congress to vote the war, if recommended.^^ 

35 Writings, IX, 87-88. 

36 Richardson, op. cit,, I, 422. 

37 Hid., 424. 

38McMaster, op. cit., Ill, 263, 269-270. 

39 For the Henry correspondence, see Annals of Cong,, 12 Cong., I, 1162- 
1181; for Madison's message, Eichardson, op. cit., I, 498. 

40 Updyke, Diplomacy of the War of 1812, 126-127. 

41 Writings of James Madison, VIII, 192, n ; Joseph Gale 's account in 
Am. Hist. Eev., XIII, 309; of. also accounts in Hildreth, History of the 
United States, VI, 298; VonHolst, Constitutional and Political History of 
the United States, I, 230;, McMaster, op. cit., Ill, 448 — all to the effect 
that Madison was promised a renomination if he would send Congress a war 
message. 



86 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [86 

Thereupon Madison sent a special message June 1, 1812, recom- 
mending war,*2 to which Congress responded by passing the dec- 
laration on June 18. 

The significance of this is not so much in the apparent domina- 
tion of the President by the majority element in Congress, as in 
the fact that Congress, even tho fully convinced of the necessity 
for war and fully determined upon such action, yet found itself 
unwilling to act without first securing the recommendation of 
the President. Had the President been less hasty in passing 
judgment upon, and submitting to Congress, the Henry corres- 
pondence, the authenticity of which had at least not been thoroly 
established; had he delayed his war message a little longer, the 
new conciliatory attitude of the British Government might have 
been met and the war of 1812 very likely altogether averted. 
These are the facts that John Adams probably had in mind when 
he wrote in 1815: "Mr. Madison's administration has proved 
great points, long disputed in Europe and America. 

1. He has proved that an administration under our present 
Constitution can declare war. 

2. That it can make peace. . . " *^ 

President Polk came into office in 1845 with the avowed pur- 
pose of acquiring California and, later, also New Mexico. He 
tried first to secure them peacefully by purchase, and for that 
purpose sought an appropriation of a million dollars from Con- 
gress, concealing the real object under the euphemistic phrases 
of "effecting an adjustment of our differences with Mexico," 
and ' ' the conclusion of a Treaty of boundary. ' ' ** Failing in 
this, Polk, as early as February, 1846, declared himself in favor 
of "strong measures" against Mexico, and from that time was 
steadily determined on war.*^ The sending of a war message 
was postponed, however, partly because of the unsettled state of 
the negotiations with Great Britain over the Oregon question, 
but probably rather because Polk was seeking something that 
might serve as a plausible cause for war. 

^2 Writings, VIII, 192-200; Eichardson, op. cit., 1, 499-505. 

43 Life and Works of John Adams, X, 167-168. 

44McMaster, op. cit., VII, 432, 439; Reeves, American Diplomacy under 
Tyler and Folic, 272; Biary of James K. Polk, I, 34-85, 303, 306-308, 310- 
313, 317. 

45Eeeves, op. cit., 284, 287, 288, 294; Rhodes, Historical Essays, 211; 
Diary of James E. Polk, 1, 233-234, 319, 337, 343. 



87] POWERS WITH REGARD TO A DECLARATION OF WAR 87 

Certain sundry claims of American citizens upon Mexico had 
been a matter of difficulty and negotiation between the two gov- 
ernments since 1836,*® and were still largely unsettled. The 
President now hit upon these claims as the "aggravated wrongs" 
which should be the basis for the complaints against Mexico,*^ 
altho ''many of the claims were exorbitant and some of them 
fraudulent. ' ' *^ Meanwhile, General Taylor had been sent to 
occupy the disputed territory beyond the Nueces Eiver, had ad- 
vanced to a position opposite Matamoras where a strong Mexi- 
can force was located, and Polk seemed to think there was some 
hope of a collision in the near future,*^ which would give him 
more satisfactory ground for his war message. 

For some time, however, no hostilities occurred, the President 
became impatient of delay, and on May 9 the Cabinet agreed that 
a message recommending war should be prepared and submitted 
by the following Tuesday (May 12), whether the Mexican forces 
had committed any act of hostility against Taylor or not. Bu- 
chanan, the Secretary of State, had already drawn up a state- 
ment of the causes of complaint, the President had decided to 
substitute practically the precise language he himself had used 
in dealing with the Mexican claims in his annual message of the 
year before, when suddenly the situation was changed by the re- 
ceipt of news that same evening from Taylor that the Mexicans 
had attacked and hostilities had begun. The Cabinet was immed- 
iately summoned again, and it was agreed that a message should 
be sent recommending ''vigorous and prompt measures to enable 
the Executive to prosecute the war. ' ' ^** 

Polk 's opportunity had come. He recognized that ' ' public ex- 
citement in and out of Congress was very naturally very great ; ' ' 
unlike Jefferson, he determined to play upon that feeling, so he 
spent Sunday in writing his message, and on Monday, May 11, 
it was submitted to Congress. There was now no mention of the 
long-unsettled claims as the "aggravated wrongs" borne by the 
United States ; the entire emphasis was laid on the fact that the 
Mexicans had attacked American forces and shed American blood 

46 Beeves, op. cit., 76, 86, 93, 96, 107-108. 

47 Diary of James K. Polk, I, 363, 377, 382. 

48 Reeves, op. cit., 86. 

i^ Diary of James K. Folic, I, 380 (May 6, 1846). 
50 Ibid., 384-386, 



88 WAE POWERS OF THE EXECUTIVE IN UNITED STATES [88 

on American soil, and that since war had thus been begun by 
Mexico, the issue must be accepted and hostilities carried on with 
vigor.^^ 

In spite of the fact that there had been, and still was, bitter 
opposition in Congress to a war with Mexico,^^ the President's 
message was quickly responded to. In two hours, of which time 
one and a half hours were occupied in reading the documents ac- 
companying the President's message, the House of Representa- 
tives passed the bill reciting that war existed by act of Mexico 
and providing for the support of hostilities.^^ The Senate could 
not be hurried quite so rapidly, but by evening of the next day 
(May 12), it had also given its sanction; and the President's ac- 
tions were sustained. 

Whether or not Congress would have sustained the President 
and authorized hostilities, had not the news from Taylor changed 
the situation from an admitted war of aggression to an osten- 
sible war of defense, it is impossible to say with any degree of 
certainty. Certainly, as Reeves suggests, "Taylor's skirmish 
with the Mexicans was an occurrence that saved Polk from a 
dangerous situation. ' ' ^* Nevertheless, Polk had been able to so 
handle matters as to make an armed collision almost inevitable, 
and he took advantage of the excitement thus aroused to secure 
from an unwilling Congress a strong backing for his war policy. 
His actions, says Rhodes, "illustrate the power inherent in the 
executive office." ^^ Certainly, but for the action of the President, 
the war would not have been sanctioned by Congress ; because of 
the action of the President, the war was sanctioned, and the 
objects sought by the President were obtained. 

Had President Grant been eager for war with Great Britain, 
a mere message and recommendation from him to that effect 
would undoubtedly have brought on such a conflict. The unani- 
mous passage by the House of Representatives in 1866 of a bill 
modifying the neutrality laws in such a way as to permit the 

51 Richardson, op. cit., IV, 437-443. 

52 A motion in the House of Eepresentatives for a formal declaration of 
war was rejected by a large majority. Cong. Globe, 29 Cong., 1 Sess., 792, 
794. 

53 Statement of Senator Benton. Diary of James K. Folk, I, 392. 

54 Eeeves, op. cit., 298. 

55 Historical Essays, 212. 



89] POWERS WITH REGARD TO A DECLARATION OF WAR 89 

sale of war-ships and munitions to other powers ;^^ the sympathy 
and support given to the Fenian movement aginst Canada ; the 
resolution proposed in the Senate in 1867 for the recognition to 
Abyssinia during its war with Great Britain of the same rights 
which Great Britain had recognized to the Confederacy;^^ the 
action of the Senate in 1869 in rejecting by a vote of 54-1 the 
treaty providing for a joint high commission to pass upon the 
claims of subjects of either government against the other ; ^^ 
speeches such as that of Senator Sumner delivered during the 
consideration of the above-mentioned treaty ;^^ the angry and 
excited discussion in the press of the two countries — these vari- 
ous incidents showed that the bitter feeling aroused against Great 
Britain during the Civil War had assumed hostile form;*"^ that, 
as an eminent authority has expressed it, ' ' in the opinion of the 
majority, the country had just cause for war in the escape of the 
Alabama and the Florida. ' '^^ 

The President and his wise Secretary of State, Hamilton Fish, 
chose to disregard this sentiment of the country and of Congress 
for an unyielding and belligerent attitude towards Great Britain. 
On the other hand, the two points in the American ease which 
had given special offense to the British were allowed to recede 
into the background, if not conceded altogether,^^ negotiations 
were persistently carried on for the arbitration of the Alabama 
and Florida claims, and the peace was preserved. 

President Cleveland, on the other hand, very nearly precipita- 
ted war with England, when in his special message of December 
17, 1895,^^ he made his strong declaration with regard to the 
Venezuelan boundary situation. The President stated that arbi- 

56 Cong. Globe, 39 Cong., 1 Sess., Pt. V, 4194, 4197. See See. 10, which 
was the addition. The debate on the bill shows that it was aimed particu- 
larly at Great Britain. 

57 Ihid., 40 Cong., 1 Sess., 810. 

58 Sen. Ex. Jour., XVII, 163. 

59 On April 13, 1869. Worhs of CJutrles Swmier, XIII, 53-93. 
60(7/. Ihinning, Beoonstruction : Political and Economic, 160-162. 

61 Rhodes, Historical Essays, 218-219. 

62 These were the claim that wrong had been done to the United States 
by the recognition of the Confederates as belligerents, and the demand for 
compensation for "national" or "indirect" losses. See Dunning, op. cit., 
167. 

63 Eichardson, op. cit., IX, 655-658. 



90 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [90 

tration had been declined by Great Britain, and proposed an 
independent inquiry and report by a strictly American commis- 
sion. "When such report is made and accepted," he said, "it 
will, in my opinion, be the duty of the United States to resist 
by every means in its power, as a willful aggression upon its 
rights and interests, the appropriation by Great Britain of any 
lands or the exercise of any governmental jurisdiction over any 
territory which after investigation we have determined of right 
belongs to Venezuela. ' ' ^* Tho the country had up to this time 
been ignorant of the peremptory demands of the administration, 
and the message threatening war came therefore as an unexpect- 
ed shock ;^^ tho Congress and the President had heretofore 
quarreled over almost every question of consequence. Congress 
now sustained the President in his demands and passed almost 
without debate, the bill for the appointment of the commission 
asked for."^ 

It is not important in this connection whether or not the Presi- 
dent had made a valid interpretation and a correct application 
of the Monroe Doctrine. The important thing to notice is that 
he had raised an issue which meant simply this, that if arbitra- 
tion were refused by Great Britain, the United States would mark 
the boundaries of one of her colonies and compel the mother- 
country to accept the limits so prescribed ; that a hostile Congress 
had accepted without question the issue so raised; and that the 
President had thereby placed the United States and Great Brit- 
ain unexpectedly in a position where one or the other must open- 
ly recede from its announced intention, if a conflict was to be 
averted. A conflict was averted, but only by reason of England's 
conciliatory agreement to arbitrate ; and it is worthy of note that, 
as one authority has expressed it, "only in the case where he 
(Cleveland) was led, by whatever influences, to offer a gross in- 
sult to Great Britain, such as would not have been borne for a 
moment by this country from any other without prompt resent- 
ment, did he receive the unanimous support of both houses. ' ' ®^ 

«4 Richardson, op. cit., IX, 658. 

65 Dewey, National Problems, 308 ; Latane, From Isolation to Leader- 
ship, 49. 

GGCong. Secord, XXVIII, Pt. I (54 Cong., 1 Sess.), 234-235, 255-205; 
Dewey, op. cit., 310. 

67 Bradford, The Lesson of Popular Government, I, 358, n. Other au- 



91] POWERS WITH REGARD TO A DECLARATION OP WAR 91 

In the case of the difficulties with Spain over the Cuban ques- 
tion, it has been said that "Presidents Cleveland and McKinley 
kept the national legislature from a declaration of hostilities for 
more than two years before final action was taken. " ^^ It is true 
that the temper of Congress was for war long before the Presi- 
dent was ready to recommend such a step ; it is likewise undoubt- 
edly true that the President might have delayed such recommen- 
dation still longer, and possibly — almost certainly — have avert- 
ed war altogether. 

Congress in 1890 had, by concurrent resolution, requested the 
President ''to invite from time to time, as fit occasions may arise, 
negotiations with any government with which the United States 
has or may have diplomatic relations,' to the end that any differ- 
ences or disputes arising between the two governments which can- 
not be adjusted by diplomatic agency may be referred to arbitra- 
tion, and be peaceably adjusted by such means. ' '^^ In the spring 
of 1898 Spain had made several concessions, which, according to 
eminent authority, "fully covered" the expressed wishes of the 
United States for Cuba,^" and on March 31, she proposed arbitra- 
tion of the Maine controversy.^^ General Woodford, the Amer- 
ican minister to Spain, evidently did not consider the situation 
hopeless, for he wrote : "I know that the Queen and her present 
ministry sincerely desire peace and that the Spanish people de- 
sire peace, and if you can still give me time and liberty of action 
I will get for you the peace you desire so much and for which 
you have labored so hard ; " ^^ and on April 10, in a personal 
appeal to the President : "I hope that nothing will now be done 
to humiliate Spain, as I am satisfied that the present Government 
is going, and is loyally ready to go, as fast and as far as it 
can."" 

thorities say that President Cleveland, in this instance, recommended "de- 
mands Great Britain could hardly regard as anything but unfriendly." 
Ogg & Beard, National Governments and the World War, 102. 

68 Young, The New American Govenvment and Its Work, 27. 

69 Yale Bev., IX, 402. 

70 For these concessions of March 30, March 31, and April 9, see For. 
Bel. 1S98, 725, 762, 750; cf. also Benton, International Law and Diplomacy 
of the Spanish American War, 83-91. 

71 Benton, op. cit., 85. 

72 For. Bel. 1898, 732. 
t^Ihid., 747. 



92 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [92 

But neither the above-mentioned resolution of Congress, the 
overtures of Spain, the proffered mediation of the Powers,^* nor 
the pleading of the American minister, had any effect on the 
President. No reply was made to the offer of arbitration,'^^ and on 
April 11, the message recommending war went to Congress, with 
the usual and natural response. The vital question, says Benton, 
is "whether the President did not yield prematurely and whether 
he had exhausted the resources of diplomacy ;" '"^ he answers 
that question by saying that in the opinion of nearly all writers 
on international law the particular form of intervention in 1898 
was "unfortunate, irregular, precipitate, and unjust to Spain."" 

The influence of President Wilson with regard to the events of 
the recent world war, and the readiness of Congress to follow 
his recommendations — to be a "peace Congress" when the 
President desired peace, to be a "war Congress" when the 
President recommended war — are too evident to require any ex- 
tended comment. Altho basing his claim for re-election in 1916 
largely on the ground that he had ' ' kept us out of war, ' ' with the 
presumption that he would continue to do so in the future, and 
carrying with him a Congress presumably committed to the same 
policy; and altho standing, as late as January, 1917, for 
' ' peace without victory, ' ' ^® President Wilson felt compelled by 
the turn of events to recommend war upon Germany in his ad- 
dress of April 2, a recommendation at once adopted by the 
"peace Congress" with very little opposition.'^^ 

Altho the governments allied with Germany could with diffi- 
culty be distinguished in method and policy from the government 
of Germany — the Austro-Hungarian government especially 
having openly avowed its endorsement of Germany's submarine 
policy, and its ambassador having been implicated in plots to des- 

74 On April 6, the Ambassadors of Great Britain, Germany, Austria, 
France, Italy, and Russia, united in a personal appeal to President Mc- 
Kinley for a peaceful adjustment. Two days later, even stronger repre- 
sentations were made at Madrid. Benton, op. cit., 89-90. 

7'5 President McKinley, in Ms message to Congress, dismissed this offer 
of arbitration with these laconic words : " I made no reply. ' ' 

76 Benton, op. cit., 95. 

77 lUd., 108. 

78 See his address to the Senate, Jan. 22, 1917. McKinley, Collected Ma- 
terials for the Study of the War (1st ed.), 9-11. 

79 Joint Resolution of Apr. 6, 1917. Ihid., 137. 



93] POWERS WITH EEGARD TO A DECLARATION OF WAR 93 

troy our factories — , the President was not at that time ready 
to make war upon any of them, because, as he said, "they have 
not made war upon us or challenged us to defend our right and 
our honor. ' ' ^° Congress therefore took no action towards de- 
claring war against these countries. 

However, by December of the same year, President Wilson had 
discovered that ''one very embarrassing obstacle that stands in 
our way is that we are at war with Germany, but not with her 
allies." He therefore recommended a declaration of a state of 
war with Austria-Hungary, that nation being "not her own mis- 
tress, but simply the vassal of the German Government." The 
President admitted that the same logic would seem to demand a 
declaration of war also against Turkey and Bulgaria, since ' ' they 
also are the tools of Germany," but he declined to recommend 
such action against these countries, because "they are mere 
tools, and do not yet stand in the direct path of our necessary ac- 
tion. "^^ In each case Congress followed the recommendation of 
the President without question, declaring war upon Austria- 
Hungary,^^ and, despite some feeling that Turkey and Bulgaria 
should have been included,®^ no declaration was ever made against 
those countries.^* 

These examples and incidents from the history of our own 
country illustrate clearly the very important position conceded 
to the President with regard to a declaration of war. They would 
seem to bear out the statement of one of our congressmen, when^ 
he said in a recent speech: "History shows . . that while" 
Congress does possess that power (to declare war), in reality, the 
President exercises it. Congress has always declared war when 
the President desired war, and Congress has never attempted to 
declare war unless the President wanted war. That was true of 
the war of 1812. It was true of the Mexican war. It was true 
of the Spanish-American war. It was true of this war. It will 

80 Address to Congress, Apr. 2, 1917. McKinley, op. cit., 15. 

81 Address to Congress, Dec. 4, 1917. N. Y. Times Current Hist. Mag., 
VII, 66-67 (Jan., 1918). For further reasons why Turkey and Bulgaria 
were omitted, see ihid., 74, 

82 Joint Eesolution of Dec. 7, 1917. Ihid., 69. 

83 Cf. attitude of Senator Lodge. IMd., 75. 

84 Diplomatic relations were broken off with Turkey, Apr. 20, 1917, but 
the initiative had been taken by that country; with Bulgaria relations were 
not even severed during the entire course of the war. 



^Cm* 



94 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [94 

probably be true of every war in which the nation engages so 
long as the present method of declaring war continues. ' ' ^^ 

The power of the President to recommend war and to com- 
municate facts as a basis for such recommendation gives him also 
an opportunity to set forth the grounds and to explain the pur- 
poses of the nation in entering upon war. Since the ratifica- 
tion of the Hague Convention of 1907, such a statement of rea- 
sons is required before the beginning of hostilities. These are the 
terms of the article in question : ' * The Contracting Parties rec- 
ognize that hostilities between them must not commence without 
a previous and unequivocal warning, which shall take the form 
either of a declaration of war, giving reasons, or of an ultima- 
tum with a conditional declaration of war. " ^^ It would seem, 
from the language of the article, that the body in any country to 
which is entrusted the power of declaring the war was considered 
the proper body to specify the reasons for such declaration. 

As a matter of fact, the uniform practise in the United States 
has been otherwise. Even before the adoption of the Hague Con- 
vention, the President, in his messages to Congress recommend- 
ing war, has always stated what seemed to him to be the reason- 
able grounds for such action. There is no doubt that Congress, 
under its power to pass the declaration, might likewise have ex- 
pressed its reasons,^^ which might agree with those of the Presi- 
dent, or might differ, either wholly or in part. The President 

85 Congressman Dill. Cong. Record, 65 Cong., 3 Sess. (Jan. 21, 1919), 
1824; see also an editorial in TTie Nation, Mar. 1, 1919; ef. Finley & San- 
derson, The American Executive and Executive Methods, 280 ; Bryce, Amer- 
ican Commonwealth, I, 54; Bradford, The Lesson of Popular Governmerd, 
I, 359; Case, Constitutional History of the United States, 232-233; Young, 
The New American Government and Its Work, 27; Schouler, Constitutional 
Studies, 138. 

86 Convention relative to the Commencement of Hostilities, Art. 1. Hig- 
gins, The Hague Peace Conferences, 198. 

8T "It may be said. . . that this power (of declaring war) naturally 
includes the right of judging whether the nation is or is not under obliga- 
tions to make war. . . However true this position may be, it will not 
follow that the executive is in any case excluded from a similar right of 
judgment, in the execution of its own functions." Works of Alexander 
Hamilton, IV, 142. ' ' The power to judge of the causes of war, as involved 
in the power to declare war, is expressly vested, where all other legislative 
powers are vested, that is, in the congress of the United States." Writings 
of James Madison, VI, 154; cf. ibid., 153, 161. 



95] POWERS WITH REGARD TO A DECLARATION OF WAR 95 

would be bound to accept or reject the declaration as passed by- 
Congress, as a whole.^® He could not accept the conclusion and 
disapprove of the grounds given for the action. Congress has, 
however, contented itself with a mere formal declaration of war 
or a formal recognition of a state of war as already existing, 
without adding any specific statement of reasons or objects. Long 
reports have been made in every case by the Foreign Relations 
committees of each house, justifying the action about to be taken, 
but in no case has the statement of reasons embodied in these re- 
ports been incorporated into the declaration itself, not even since 
the adoption of the Hague Convention. Congress, in thus refus- 
ing or neglecting to give a specific statement of its own, has ap- 
parently recognized the President as having the right and as be- 
ing the most suitable authority to set forth to the world the griev- 
ances of the nation. At all events, the President, rather than 
Congress, is now regarded, both at home and abroad, as the 
spokesman of the nation with regard to the reasons and objects of 
a war, and his statements have been generally accepted as com- 
mitting the nation to the policies therein laid down. 

The power of the President with regard to a declaration of war 
does not end with the functions of communication of informa^^ 
tion, and of recommendation. A declaration of war, like any 
other bill, order, resolution, or vote requiring the concurrence of 
both houses of Congress, must be submitted to the President for 
his approval or disapproval.^^ If it were possible to imagine 
Congress as passing a declaration of war without first being cer- 
tain of the President's approval, or in direct opposition to his 
known views (as is often done with other measures), the Presi- 
dent could exercise his power of veto and thus prevent the dec- 
laration from going into effect. Theoretically, Congress might 
in turn, by a two-thirds majority, declare war even against the 
wishes of the President.^" Strictly speaking, it is true, as an em- 
inent senator has said, that "the President not only cannot de- 
clare war, and it is not only conferred in terms upon Congress, 

88 S. E. Baldwin, op. cit., Am. Jour. Int. Law, XII, 10. 

89 Constitution, Art. I, Sec. 7, CI, 2, 3. The declarations in the cases of 
the War of 1812, the Mexican War and the Spanish-American War were 
passed in the form of Act^ of Congress; those against Germany and Aus- 
tria-Hungary in the form of joint resolutions. 

90 See Sehouler, Constitutional Studies, 137. 



y^ 



96 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [96 

but even if the President should be opposed to a proposed war, 
two-thirds of each Branch can declare war. It would not require 
his approval. There is the most important of all foreign rela- 
tions. It does not belong to the President, " ^^ In practise, how- 
ever, such a situation cannot be imagined. The successful prose- 
cution of a war would be impossible without the hearty coopera- 
tion of that department of the government which has in its sphere 
the actual direction and management of the war. Consequently, 
js | I tho Congress technically has the power, it has chosen to fol- 
I low rather than to lead with respect to a declaration of war. It 
* always has sought, and it is safe to assume that it always will 
seek, to assure itself of the President's approval before passing 
or even proposing a declaration of war,^^ 

After the enactment and approval of a declaration of war, it 
becomes the right and duty of the President to give public no- 
tice of it to all neutral powers.^^ The Hague Convention of 1907 
requires such notice to neutrals, without specifying by whom it 
is to be given,^* The President, however, as the sole organ of 
communication with foreign powers, is the natural authority for 
the exercise of that function, and there has been no dispute as to 
his right or duty in that respect. The exercise of the function is 
of considerable importance, since by the article referred to a 
state of war is to be regarded as of no effect towards neutrals 
until they have received such notification,^^ and hence a delay or 
neglect in fulfilling the requirement of the Convention might af- 

91 Senator Bacon. Cong. Becord, XL, Pt. 3 (59 Cong., 1 Sess.), 2132. 

92 ' ' Certain it is that the war with France was begun that way. Con- 
gress following the lead of, and seeking knowledge from, the President at 
every step." Sen. Doc. No. 56, 54 Cong., 2 Sess., 17. A recent newspaper 
dispatch with regard to the Mexican situation is significant as illustrating 
the absolute subserviency of even a hostile Congress in such matters : * ' Presi- 
dent Wilson is in complete control of the direction of American, policy in 
dealing with Mexico. , . If President "Wilson should indicate that Con- 
gress should adopt the Fall resolution requesting a severance of diplomatic 
relations vdth Mexico and withdrawal of recognition of Carranza, there 
would be little opposition to the passage of the measure. If, however, he 
should oppose such a step, the resolution will be modified to conform to his 
views or shelved." Chicago Tribune (Staff Correspondence)^ Dec. 8, 1919. 

93 S. E, Baldwin, op. cii., Am. Jour. Int. Law, XII, 11. 

94 Convention relative to the Commencement of Hostilities, Art. 2. Hig- 
gins, op. cit., 199. 

95 Hid. 



97] POWERS WITH REGARD TO A DECLARATION OF WAR 97 

feet the validity of captures at sea and other warlike operations 
involving neutral rights. The chief ends of such announcement 
to neutrals are, therefore, to give formal notice of the fact of the 
declaration and the time of its going into effect. 

In addition to notifying neutrals, the President usually also 
gives official notice of the existence of a state of war to the citi- 
zens of this country. This he does by means of a public procla- 
mation. Presidents Madison and Polk both issued such proclama- 
tions, merely announcing to the country that war existed by act 
of Congress and exhorting the people to exert themselves "in 
preserving order, in promoting concord, in maintaining the au- 
thority and the efficacy of the laws, and in supporting and in- 
vigorating all the measures which may be adopted by the con- 
stituted authorities for obtaining a speedy, a just, and an hon- 
orable peace." ^^ 

There does not appear to be any express constitutional or stat- 
utory authority for the issuance of such proclamations, the 
if any were needed, it might be implied from the power to **take 
care that the laws be faithfully executed. ' '^'^ It may also be in- 
ferred from an act passed in 1798. This act provided, among 
other things, for the removal of enemy aliens ** whenever there 
is declared a state of war between the United States and any for- 
eign nation or government, or any invasion or predatory incur- 
sion is perpetrated, attempted, or threatened against the territory 
of the United States, by any foreign nation or government, and 
the President makes public proclamation of the event." It fur- 
ther authorized the President, ' ' in any such event, by his procla- 
mation thereof, or other public act," to establish the necessary 
regulations for the conduct, restraint, residence, or removal of 
such aliens.®^ President Wilson, in his proclamation of April 6, 
1917, anouncing the state of war with Germany ,^^ referred 
specifically to this section of the Revised Statutes for his author- 
ity, tho he was probably referring rather to the authorization 
to proclaim alien enemy regulations than to the mere announce- 
ment of a state of war. President McKinley issued several proc- 

86 Eichardson, op. dt., I, 512 ; IV, 470. 

97 Constitution, Art. II, Sec. 3. 

98 Act of July 6, 1798. Annals of Cong., 5 Cong., Ill, App., 3753. See 
also U. S. Bev. Stats., sec. 4067. 

99 Text in McKinley, Collected Materials for the Study of the War, 169. 



98 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [98 

lamations after the declaration of war against Spain, but none 
announcing the existence of a state of war. It was probably 
thought unnecessary since the war had already been going on 
for several days before the retroactive declaration was adopt- 
g^ 100 rjy-^Q President can hardly be said to be under any obliga- 
tion to issue such a proclamation, since the passage of the dec- 
laration should be sufficient notice to the country of the existence 
of a state of war. He has generally deemed it wise to do so, how- 
ever, and there can be no question of his power in that respect, 
even without express authority. The statute mentioned may be 
said to confer the authority by implication, and, indeed seems 
to expect from the President that action. 



100 The joint resolution authorizing the President to use the armed forces 
in compelling Spain's withdrawal from Cuba was passed April 20, hostile 
measures were taken at once, and the formal declaration, passed April 25, 
declared the war to have existed since the 21st. 



II. Military Powers in Time of War 



CHAPTER VI 

POWER TO RAISE AND ORGANIZE THE 
ARMED FORCES 

It has come to be an axiom in public law that the power to 
raise and support the armed forces of a democratic state should 
be confided exclusively to the popular branch of the govern- 
ment.^ The Constitution of the United States accordingly gives 
to Congress the power "to raise and support armies," and "to 
provide and maintain a navy."^ Raising armies includes such 
matters as the determination of the number of men to be enlist- 
ed ; their enlistment qualifications ; their oganization into the dif- 
ferent arms of the service ; the number and arrangement of the 
various units ; the number and rank of officers ; the term of ser- 
vice for officers and men. Providing a navy includes the deter- 
mination of the same class of subjects relating to the seamen and 
naval officers ; the number, size, character, and cost of vessels of 
war, navy and dock yards, and other similar matters.^ 

Over all these matters the power of Congress is complete and 
exclusive. The President is vested with no constitutional power 
in regard to the raising and organization of the armed forces. He 
derives none from his position before international law. Hence 
such powers as he does possess in this respect must rest wholly 
upon the authority of custom and statute. Congress in this field is 
supreme, but Congress has from the first recognized the wisdom 
and necessity of entrusting the President with some statutory 
authority, which has at times amounted to the exercise of a con- 
siderable discretionary power. 

The common method of raising armies under ordinary circum- 
stances — that of voluntary enlistment — has generally been ex- 

iPomeroy, Constitutional Law (Bennett's ed.), 382. 

2 Art. I, See. 8, CI. 12, 13. 

3 Pomeroy, op. cit., 383. 

101 



102 WAR POWERS OF THE EXECUTIVE IN UNITED STxiTES [102 

ercised in peace time in accordance with detailed statutes, leaving 
to the President little or no real power. Congress is ordinarily 
careful to prescribe definitely the number of men to be enlisted, 
their enlistment qualifications, the term of their service, and 
other details, merely authorizing the President "to accept," "to 
call for," "to call for and accept," or "to employ," within these 
well-defined limits. Occasionally the statutes have prescribed 
only the maximum number of men to be raised, giving to the 
President some little discretion in determining upon the size of 
the forces within that number. Likewise when providing for the 
navy, the statutes generally prescribe in detail the number and 
kind of ships to be constructed, contracted for, or purchased, the 
cost and details of equipment and armament, and other corres- 
ponding matters, leaving to the President only the duty to see 
that the provisions of the statutes are carried out. 

In times of war or emergency, however, and occasionally even 
in peace time, the President has been vested with more or less 
discretion in these matters. Thus the foundation of the army 
under the Constitution had scarcely been laid,* when by the Act 
of March 3, 1791, which added another regiment to the regular 
forces, the President was given power, " if of opinion that it will 
be conducive to the public service," to employ "levies" (volun- 
teers) in addition to the number of 2000, for six months, as a 
supplementary force, obviously to be used only for emergency 
purposes.^ An act of the next year (March 5, 1792), passed as a 
result of St. Clair's defeat by the Indians, provided three addi- 
tional regiments for the protection of the frontier to be enlisted 
for three years, but gave the President the power "to forbear to 
raise, or to discharge after they shall be be raised, ' ' the whole or 
any part of these forces, "in case events shall, in his judgment 
render his so doing consistent with the public safety. ' ' The Presi- 
dent was further authorized to call into service "for such period 
as he may deem requisite, such number of cavalry as, in his judg- 
ment, may be necessary for the protection of the frontiers ; ' ' and 

4 By the Aet of Sept. 29, 1789, the army existing under the Confedera- 
tion was "recognized to be the establishment for the troops in the service 
of the United States; " and by the Act of Apr. 30, 1790, the beginning was 
made of a permanent military establishment. Annals of Cong., 1 Cong., II, 
App., 2199, 2222. 

5lMd., 2350. 



103] POWER TO RAISE AND ORGANIZE THE ARMED FORCES 103 

also to employ "such number of Indians as he may think prop- 
er .. in case he shall deem the measure expedient. ' ' ^ 

The crisis with France resulted also in the granting of consid- 
erable discretionary power to the President. The Act of May 28, 
1798, authorized the President to raise a Provisional Army of 
10,000 men, ' ' in the event of a declaration of war against the Uni- 
ted States, or of actual invasion of their territory by a foreign 
Power, or of our imminent danger of such invasion, discovered, 
in his opinion, to exist, before the next session of Congress ; ' ' and 
also to create a sort of reserve force by accepting, * * if in his opin- 
ion the public service shall require, ' ' volunteers liable to service 
at any time within two years.^ Other acts during the same period 
likewise vested the President with some discretionary power, 
such as to prescribe the enlistment qualifications for the forces 
provided and to discharge the troops at his discretion.^ 

The Acts of February 24, 1807 and February 6, 1812, passed in 
anticipation of trouble with England, each again provided a sort 
of reserve force, of 30,000 and 50,000 men, respectively, to be 
liable for duty at any time the President might deem proper, 
within two years from the date of their acceptance into the ser- 
vice f while another act passed during the war (Act of January 
29, 1813) authorized the raising of such a force *'as in the opin- 
ion of the President may be necessary for the public service, ' ' up 
to twenty additional regiments.^" 

During the Mexican War very little real discretionary author- 
ity was granted to the President in the matter of raising the 
necessary forces, altho the Act of May 13, 1846, recognizing 
a state of war, empowered him to employ the militia, naval, and 
military forces, and "to call for and accept" up to 50,000 volun- 
teers ; while another act of the same date authorized him to in- 
crease the companies in the regular army to 100, to be reduced 
again to 64 when the exigency should cease.^^ 

e Annals of Cong., 2 Cong., App., 1343 (Sees. 11, 13, 14). 

T Ibid., 5 Cong., Ill, App., 3729 (Sees. 1, 3). It was under authority 
of this act that Washington was appointed Lieutenant-General and Com- 
mander-in-Chief of the forces to be raised for the expected war with France. 

8 Acts of July 16, 1798 and Mar. 2, 1799. Ibid., 3785, 3933. 

9 Ibid., 9 Cong., 2 Sess., App., 1259 ; ibid., 12 Cong., II, App., 2235. 
lo/feid, 12 Cong., 2 Sess., App., 1322-1325. 

11 9 Stat, at L., 9, 11. 



104 WAR POWEES OF THE EXECUTIVE IN UNITED STATES [104 

The earliest acts for the raising of volunteers and for the in- 
crease of the regular army during the Civil War were similar in 
character, the President being authorized to accept volunteers, 
* * in such numbers as the exigencies of the public service may, in 
his opinion, demand, " up to 500,000 for three years or the dura- 
ton of the war; and to increase the regular army by 11 regi- 
ments, such increase to be only for the period of the emer- 
gency.^^ The Act of July 17, 1862, however, vested the Presi- 
dent with somewhat larger powers, in that, besides authorizing 
him to accept an additional 100,000 volunteers for nine months, 
it empowered him to accept volunteers as replacements, ' ' in such 
numbers as may be presented for that purpose;" and also to 
employ persons of African descent, without limit as to number, 
for any labor, or military or naval service, for which they might 
be found competent/^ Considerable power was also given with 
regard to increasing the navy by an act which authorized the 
Secretary of the Navy to hire, purchase, or contract for such ves- 
sels ' ' as may be necessary. ' '^* 

The most sweeping grant of power with regard to the raising 
of forces by voluntary enlistment came during the Spanish- 
American War, when no limit was placed on the numbers the 
President might call for in that way. Both the Joint Resolu- 
tion of April 20, presenting the ultimatum to Spain, and the Act 
of April 25, formally declaring war, empowered the President, 
in identical language, "to use the entire land and naval forces 
of the United States, and to call into the actual service of the 
United States the militia of the several States, to such exent as 
may be necessary to carry these resolutions [and this Act] into 
effect. "1^ The Act of April 22, 1898, authorizing the Volun- 
teer Army, apparently contemplated some legal limit, as it pro- 
vided that when necessary to raise a volunteer army, ''the Presi- 
dent shall issue his proclamation stating the number of men de- 
sired, within such limits as may be fixed by law. ' ' ^^ With the 
exception of provisions regarding special organizations,^'^ no lim- 

12 Acts of July 22, July 25, and July 29, 1861. 12 Stat, at L., 268, 274, 
279. 

13 12 Stat, at L., 597 (Sees. 3, 4, 12). 

14 Aet of July 24, 1861. Ibid., 272. 

15 30 Stat, at L., 364, 738. 
tejiid., 361 (See. 5). 

^1 Ibid. (See. 6); see also Act of May 11, 1898. Ibid., 405. 



105] POWER TO RAISE AND ORGANIZE THE ARMED FORCES 105 

it to the number of troops to be raised was ever made. Under the 
provisions of this act, President McKinley issued two proclama- 
tions, one on April 23, calling for 125,000 volunteers, and the 
other on May 25, calling for 75,000.^« 

During the recent war with Germany, the principle of raising 
troops by voluntary enlistment was almost entirely abandoned, 
altho the President was at the beginning of the war empowered 
in that way to raise the increments of the Regular Army provid- 
ed for by the National Defense Act of 1916, to recruit all Regu- 
lar Army organizations to their maximum strength, and to raise 
and maintain at his discretion four infantry divisions.^^ 

Tho considerable power has thus on many occasions been grant- 
ed to the President to raise forces by the process of voluntary 
enlistment, the adoption of conscription has carried with it a still 
larger grant of power and a wider range of discretion. There is 
no longer any doubt as to the constitutional right of Congress to 
provide for the raising of armed forces by conscription as well 
as by voluntary enlistment,^" and this method has been used, 
less commonly than the other, but on occasions of greater emer- 
gency. 

Conscription was recommended by Congress, and used to some 
extent by the states during the Revolution,^^ and was first pro- 
posed under the Constitution in 1814. Other methods having 
failed to bring forth the required number of troops. Secretary of 

18 Richardson, Messages and Papers of the Presidents, X, 203-204, 205- 

19 Selective Service Act of May 18, 1917. The authorization of the vol- 
unteer infantry divisions was in response to the offer of ex-President Roose- 
velt to raise this number of troops from the country at large. President 
Wilson declined to exercise the authority granted him under this provision. 

20Arver v. United States, 245 U. S., 366(1918), in Wigmore, Source- 
Book of Military Law and War-Time Legislation, 617-626. The general 
understanding that the Constitution contemplated and permitted conscrip- 
tion was indicated by the following amendment proposed by the Rhode 
Island ratifying convention, May 29, 1790: -That no person shall be com- 
pelled to do military duty otherwise than by voluntary enlistment, except m 
cases of general invasion; anything in the second paragraph of the sixth 
article of the Constitution, or any law made under the Constitution, to the 
contrary nothwithstanding. " Elliot's Debates, I, 386. The arguments for 
and against conscription are well summed up in Pomeroy, Const^tut^ona^ 

^21 Upton, Military Policy of the United States, 27-28, 29, 35-36, 42. 



106 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [106 

War Monroe, in a report submitted October 17, suggested to Con- 
gress several alternative plans of raising men by draft.^^ Some 
sort of conscription measure would undoubtedly have been adopt- 
ed, had not its necessity been obviated by the termination of the 
war. 

The Enrollment Act of March 3, 1863, is notable as being the 
first instance of resort to conscription in the United States under 
the Constitution. This act constituted all able-bodied male citi- 
zens and declarants between the ages of 20 and 45 into the ''na- 
tional forces," made certain classifications, divided the country 
into enrollment districts, and empowered the President to assign 
to each district the quota of men to be furnished and to call forth 
these "national forces" by draft.^^ Amendments added in 1864 
made it clear that the President's power to call for men by this 
means was to be practically unlimited, he being authorized, 
' ' whenever he shall deem it necessary, during the present war, to 
call for such number of men for the military service of the Uni- 
ted States as the public exigencies may require;" and further, 
at his discretion, to call for volunteers for one, two, or three 
years, deficiencies in quotas to be filled by draft.^* 

Under the provisions of these acts, President Lincoln issued 
five separate calls for men — by proclamation of October 17, 
1863, a call for 300,000 volunteers for three years or the war, to 
serve as replacements for those whose term of service expired 
during the year, and any deficiencies in the quotas of any state 
to be made up by draft on January 5, 1864 ; by executive order 
of February 1, 1864, a draft for 500,000 for three years or the 
war, with deductions for men furnished under the call of Octo- 
ber 17, and therefore in reality a call for only 200,000 ; by execu- 
tive order of March 14, 1864, an additional draft for 200,0000 to 
supply a force for the Navy and an adequate reserve ; by procla- 
mation of July 18, 1864, a call for 500,000 volunteers, deficien- 
cies to be filled by draft on September 5 ; and by proclamation of 
December 19, 1864, a call for 300,000 volunteers for one, two, or 
three years, to supply deficiencies and to provide for casualties.-^ 

22 Am. State Papers, Mil. Affairs, I, 514-517. 

23 12 Stat, at L., 731. 

24 Acts of Feb. 24 and July 24, 1864. 13 ibid., 6, 390. 

25 Eichardson, Messages and Papers of the Presidenis, VI, 169, 226-227, 
232, 235, 271-272. 



107] POWER TO RAISE AND ORGANIZE THE ARMED FORCES 107 

The Spanish "War was fought principally with volunteers, but 
it has already been noted that the President was given practic- 
ally unlimited power with respect to the raising of those.^® The 
threatening situation that had been developed by the great Eu- 
ropean War led, however, to the passage in 1916 of the so-called 
National Defense Act,^'^ into which was incorporated to a certain 
extent the principle of conscription, in that the President was 
empowered, among other things, to draft the National Guard 
and the National Guard Reserve created by that act, into the 
federal service, whenever Congress should authorize the use of 
armed forces for any purpose requiring troops in excess of the 
Regular Army. 

This act increased considerably the President's powers to use 
the militia forces at his discretion, since the troops so ''federal- 
ized" were by that action automatically discharged from the mi- 
litia and taken over bodily into the national forces, and might 
therefore be used, not merely as militia, but for any purpose for 
which the regular military and naval forces might be used.^* 
Under the provisions of this act, the National Guard was "fed- 
eralized" and drafted by the President into the service of the 
United States during the Mexican border troubles of 1916, and 
at the beginning of the war with Germany in 1917.^^ 

Finally, the principle of conscription was adopted in the Se- 
lective Service Act of May 18, 1917,^** as the one means for rais- 
ing the immense number of men required in the war with Ger- 
many, and the President was vested with wide powers in con- 
nection therewith. He was authorized to draft into the service 
of the United States the various National Guard organizations, 
in accordance with the National Defense Act of 1916; to raise 

26 Supra, 104. 

27 Public No. 85, 64 Cong., in Wigmore, Source-Booh of Military Law 
and War-Tvme Legislation, 384-444. 

28 It was under the provision of this act that the President was enabled 
to send the National Guard organizations overseas during the recent war, 
practically intact, and thus add in short order an immense number of al- 
ready organized and at least partly trained men to the fighting forces. 

29 N. Y. Times Current Hist. Mag., TV, 617 ; see proclamation of July 
3, 1917. U. S. Stats., 65 Cong., 1 Sess., Procs., 37. 

30 Public No. 12, 65 Cong., in Wigmore, op. cit., 460-468. This act was 
amended at various times — Apr. 20, May 16, May 20, Aug. 31, 1918. Ibid., 
469-474. 



108 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [108 

immediately by draft 500,000 men in addition to the Regular 
Army and the National Guard ; to raise and begin training, ' ' in 
his-discretion and at^uch time as he may determine," an addi- 
tional 500,000; and to raise by draft such additional units "as 
he may deem necessary ' ' for the maintenance of the above forces 
at the maximum strength. 

Tho an army of nearly 2,000,000 men was thus provided for, 
President Wilson was not satisfied with the powers granted, and 
on May 2, 1918, through Secretary Baker, he requested Congress 
to remove all limit on the number of men that might be drafted 
for military service and to give him authority to summon as 
many as he might find necessary.^^ Congress acceded to this re- 
quest, and in the Army Appropriations Act of July 9, 1918,^- 
extended the authority of the President "so as to authorize him 
during each fiscal year to raise by draft . . . the maximum 
number of men which may be organized, equipped, trained, and 
used during each year for the prosecution of the present war 
until the same shall have been brought to a successful con- 
clusion. ' ' 

The President has thus from the very earliest period of our na- 
tional history exercised a considerable power in connection with 
the raising of armed forces, a power that has been increased 
with the needs of the emergency, but a power based generally 
on definite statutory authority. It is beyond dispute that with- 
out such authority the President has no right to raise armies or 
provide for the navy. Nevertheless, there have been occasions 
when such power has been exercised without any legal sanction. 
Thus, during the Seminole War of 1818, the military command- 
ers (Generals Gaines and Jackson) took the responsibility of rais- 
ing and organizing a force of volunteers and Indians without 
statutory authority, and of formally mustering them into the 
service of the United States. General Jackson, on taking com- 
mand, had been ordered by the War Department to call on the 
executives of adjoining states for such additional militia as 
might be required for the termination of the war, but instead he 
levied an army from the people of Tennessee and Kentucky by 
private circular letters, accepted the services of two regiments of 
volunteers as well as a considerable body of friendly Indians, 

31 N. Y. Times, May 3, 1918. 

32 Public No. 193, 65 Cong., in Wigmore, op. cit., 587, 600. 



109] POWER TO EAISE AND ORGANIZE THE ARMED FORCES 109 

organized and officered them on his own authority, and placed 
at their disposition United States funds under his control. Al- 
together he was reported to have raised an army of about 2500 
men, appointed 230 officers, and established rank from an Indian 
brigadier-general down to the lowest subaltern of a company.^^ 

Jackson's action was vigorously condemned in reports by both 
Senate and House committees, as a violation of the Constitution 
and a dangerous infringement on the powers of Congress.^* 
Jackson defended his action with equal vigor, claiming that he 
had been in effect charged with the management of the war and 
vested with the powers necessary to carry it to a "speedy and 
successful" termination; that the call for volunteers was abso- 
lutely necessary to avoid delay and disaster; and that ''every 
measure touching the raising and organizing this volunteer 
corps was regularly communicated to the Secretary of War, and 
received his unqualified approbation. ' ' ^^ The records appear 
to sustain Jackson's contention. Secretary of War Calhoun, in 
reply to Jackson's announcement of what he had done, ex- 
pressed to him the "entire approbation of the President of all 
the measures which you have adopted to terminate the rupture 
with the Indians. ' ' ^'^ Responsibility for the violation of the 
Constitution must therefore rest finally in this instance with the 
Executive. . ^ 

In 1845 occurred another instance of this exercise of power 1^ 
without statutory authority. Anticipating war with Mexico, f 
the Adjutant General, by direction of the Secretary of War, 
wrote General Taylor on August 6, directing him to learn from 
the authorities of Texas what additional forces could, in a case 
of need, be placed at his disposal, and giving him authority to 
call them into service. "Such auxiliary volunteer force from 
Texas, when events, not now revealed, may justify their em- 
ployment, will be organized and mustered under your orders, 
and be received into the service of the United States when ac- 
tually required in the field to repel invasion, actual or menaced, 

. 33 Am. State Papers, Mil. Affairs^ 1, 740 ; II, 99-100. 

34 See report of the Senate committee, Feb. 24, 1819 ; of the House com- 
mittee, Feb. 28, 1820. Ihid., I, 739-741 ; II, 101. 

35 IMd., I, 755, 758. 

36 See letters of Jackson to Calhoun, Jan. 12 & Jan. 20, 1818 ; and of 
Calhoun to Jackson, Jan. 29 & Feb. 6, 1818. Ibid., I, 696-697, 743-744. 



110 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [110 

and not before. ' ' ^^ This order to Taylor was entirely without 
authority of statute, tho it was expected that provision would be 
made to cover the case. 

President Lincoln, immediately after the outbreak of the 
Civil War, took it upon himself to raise a great army without 
awaiting the sanction of Congress. By proclamation of May 3, 
1861, based on no authority except the "existing exigencies" and 
his own position ''as President and Commander-in-Chief," he 
ordered the increase of the Regular Army by 22,714 officers and 
men and of the Navy by 18,000 seamen, and in addition called 
for 42,034 volunteers to serve for three years — an aggregate in- 
crease in the armed forces of 82,748 officers and men.^^ By the 
time of the special session of Congress, beginning July 4, the 
response to these calls had brought forth a total of 220,000 men 
accepted for service — besides 80,000 militia for three months — 
without any constitutional or statutory authority.^^ The Presi- 
dent further, without statutory authority, ordered a total of 
19 vessels added to the Navy, and directed the Secretary of the 
Treasury to advance, without security, $2,000,000 to private in- 
dividuals, to be used in meeting requisitions made necessary by 
these military and naval measures.*" 

Rhodes characterized these acts of the President as ''clearly 
beyond the President 's authority, ' ' *^ and Upton says of them 
that "No usurpation could have been more complete."*^ The 
President himself recognized and admitted that he had acted 
beyond his constitutional or statutory powers, but justified him- 
self on the grounds of necessity, saying to Congress in his mes- 
sage of July 4, 1861: "These measures, whether strictly legal or 
not, were ventured upon under what appeared to be a popular 
demand and a public necessity, trusting then, as now, that Con- 
gress would readily ratify them. It is believed that nothing has 

37 House Ex. Doc. No. 60, 30 Cong., 1 Sess., 83, 84, quoted in Upton, 
Military Policy of the United States, 195-196. 

38 Eichardson, op. cit., VI, 15-16. See also Lincoln's executive order of 
May 7, 1861. Ihid., 18-19. 

39 Upton, Military Policy of the United States, 230. 

40 Richardson, op. cit., VI, 78. The individuals were John A. Dix, George 
Opdyke, and Eichard H. Blatchford. 

41 History of the United States, III, 395. 

42 Military Policy of the United States, 229. 



Ill] POWER TO RAISE AND ORGANIZE THE ARMED FORCES 111 

been done beyond the constitutional competency of Congress. ' ' ^^ 
To this Congress responded by the Act of August 6, 1861, legal- 
izing all the acts, proclamations, and orders of the President af- 
ter March 4, 1861, respecting the Army and Navy and calling 
out militia and volunteers, "as if they had been issued and done 
under the previous and express authority and direction of the 
Congress of the United States."** 

It is not within the scope of this study to speculate upon the 
question whether, in these instances of unauthorized exercise of 
power, the President was justified by the necessities in each case. 
It is sufficient to note that, when he considered the emergency ser- 
ious enough, the President has acted, and presumably will again 
act, as he thinks the situation demands, and trust to Congress 
to grant him the proper legal sanction afterwards. If these 
steps appear necessary to save the government, as they were said 
by Lincoln to be necessary in 1861, popular opinion will undoubt- 
edly sustain the President, as it did then. 

In the matter of the organization of the armed forces, the 
statutes have generally been careful to provide the details, but 
the President has frequently been granted considerable power 
in this respect also, especially in time of war or public emergency. 
The Act of March 3, 1791, authorizing the President to employ 
emergency "levies" at his discretion, empowered him also "to 
organize the said levies, ' ' apparently as he should see fit ;*^ while 
the Act of March 5, 1792, prescribed in detail the organization 
of the enlarged army, but with the distinct proviso, "That it 
shall be lawful for the President of the United States to organ- 
ize the five regiments of infantry and the said corps of horse and 
artillery as he shall judge expedient, diminishing the number of 
corps, or taking from one corps and adding to another, as shall 
appear to him proper. ' ' *^ 

Under the authority of this act. President Washington, on De- 
cember 27, 1792, announced to Congress that the Legionary plan 
of organization had been adopted for the troops, the whole force 
of about 5,000 men being given the name of the Legion of the 

43 Eichardson, op. cit., VI, 24. See also Lincoln's statement in his mes- 
sage of May 26, 1862. lUd., 78. 

44 12 Stat, at L., 326 (Sec. 3). 

45 Annals of Cong., 1 Cong., II, App., 2350 (See. 9). 
i^Ihid., 2 Cong., App., 1343 (Sec. 2). 



^ 



112 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [112 

United States, and divided into four Sub-Legions, each with its 
staff and more detailed division into dragoons, artillery, infantry, 
and riflemen.*^ The plan so adopted continued under executive 
authority until 1795, when it was given definite statutory recog- 
nition, the Sub-Legions still to be organized, however, ''in such 
manner as the President of the United States shall direct. ' ' *^ 

The Provisional Army provided for the expected war with 
France was to be organized by the President into corps of artil- 
lery, cavalry, and infantry, ' ' as the exigencies of the service may 
require ; " ^^ the largest portion of the troops provided in view 
of the threatening relations with England was to be organized by 
him into battalions, squadrons, regiments, brigades, and divisions 
as expedient;^" while the forces raised particularly for the pro- 
tection of the frontier were to be armed, equipped, and organ- 
ized "in such manner ... as the nature of the service, in 
his opinion, may make necessary. ' ' ^^ 

The organization of the forces raised for the prosecution of the 
Mexican "War was prescribed in considerable detail in the stat- 
utes, leaving to the President very little discretionary authority. 
The same was true of those authorized during the Civil War, 
except that the Act of July 17, 1862, empowered the President 
to establish and organize army corps according to his discre- 
tion.^^ The organization of the forces raised by the proclama- 
tion of May 3, 1861, was, however, undertaken by the President 
without definite authority, as was the actual levying, and it was 
done in a most extraordinary manner, in that it was entrusted by 
the President to the Secretary of the Treasury instead of to the 
Secretary of War.^^ Secretary Chase was to be assisted by a 

iT Am, State Papers, Mil. Affairs, I, 40-41. 

48 Act of Mar. 3, 1795. Aniwls of Cong., 3 Cong., App., 1515 (Sec. 3). 

49 Act of May 28, 1798. Ibid., 5 Cong., Ill, App., 3729 (Sec. 2). 

50 Acts of Feb. 24, 1807 and Feb. 6, 1812. Ibid., 9 Cong., 2 Sess., App., 
1259 (Sec. 3); 12 Cong., II, App., 2235 (Sec, 3). 

51 Act of Jan. 2, 1812. Ibid., 12 Cong., II, App., 228 (Sec. 1). 

52 12 Stat, at L., 597 (Sec. 9). For an example of how President Lin- 
coln organized the army of the Potomac under this provision see his Gen- 
eral War Order No. 2, Mar. 8, 1862. Worhs of Abraham Lincoln (Federal 
ed.), V, 443-444. 

53 ' ' The Secretary of War is the regular constitutional organ of the 
President for the administration of the military establishment of the na- 
tion." Untied States v. Eliason, 16 Pet., 291, 302 (1842). 



113] POWER TO RAISE AND ORGANIZE THE ARMED FORCES 113 

board of three army officers (Colonel Thomas, the Adjutant Gen- 
eral, Major McDowell, the Assistant Adjutant General, and Cap- 
tain Franklin, of the Topographical Engineers), who were free 
to make propositions, altho their acceptance or rejection rest- 
ed wholly with the Secretary of the Treasury. The scheme of 
organization agreed upon by this board and accepted by Secre- 
tary Chase was adopted by the "War Department and published 
to the army in General Orders,^* later being incorporated by 
Congress into statute.^^ 

For the Spanish War, the Act of April 22, 1898, altho pre- 
scribing rather fully the organization of the volunteers into brig- 
ades and divisions, again authorized the President to organize 
the army corps.^'' In the National Defense Act of 1916, the or- 
ganization was likewise carefully prescribed up to and including 
brigades and divisions, but the President was empowered, "in 
time of actual or threatened hostilities, or when in his opinion 
the interests of the public service demand it," to organize the 
forces into "such army corps or armies as may be necessary," 
with the further provision that "nothing herein contained . . 
shall prevent the President from increasing or decreasing the 
number of organizations prescribed for the typical brigades, di- 
visions, and army corps, or from prescribing new and different 
organizations and personnel as the efficiency of the service may 
require. ' ' ^^ 

This blanket authority was continued in almost identical lan- 
guage in the Selective Service Act of 1917,^^ and made it possible 
for the President, upon the advice of the General Staff, so to 
adjust the organization of the army and to add such new units 
as the character of the war showed to be necessary. It was under 
this authority, for example, that all distinctive appellations as 
Eegular Army, National Guard, and National Army, were dis- 

54 Nos. 15 and 16, May 4, 1861. See also Special Order No. 218, A. G. O., 
Sept. 2, 1862, by which President Lincoln ordered all the clerks and em- 
ployees of the departments in Washington to be organized into companies 
and supplied with arms and ammunition, ''for the defense of the capital." 
Richardson, op. cit., VI, 122. 

55 See Upton, Military Policy of the United States^ 233-235; Acts of 
July 22, 25 and 29, 1861. 12 Stat, at L., 268, 274, 279. 

56 30 Stat, at L., 362 (Sec. 9). 

57 See. 3. Wigmore, op. cit., 385. 

58 Sec. 1. Ibid., 461. 



114 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [114 

continued, and all the land forces merged into one United States 
Army.^^ It was likewise under this authority that such an or- 
ganization as the Students' Army Training Corps was added to 
the military forces ;^° that new services were added, such as the 
Motor Transport Corps, Chemical Warfare Service, Air Service, 
and Tank Corps ; and that the new plan of organization for the 
army, as recently announced by General March, was put into 
effect without any further action on the part of Congress.^^ 



59 See Summary of Annual Keport of Adjutant General of the Army, in 
Official U. S. Bulletin, Jan. 8, 1919. The Selective Service Act provided 
that the National Guard organizations drafted into the federal service 
should retain their State designations, ' ' as far as practicable. ' ' 

60 See Official V. S. Bulletin, Oct. 1, 1918. 

61 Ihid., Mar. 29, 1919. The new Navy reorganization — that of main- 
taining two separate major fleets instead of only one — was likewise an- 
nounced as going into effect June 30, 1919. N. Y. Times Current Hist. Mag., 
X, 253 (Aug., 1919). 



CHAPTER VII 

POWERS OF COMMAND 

The Constitution makes the President the Commander-in-Chief 
of the army and navy of the United States and of the state mil- 
itia when called into the actual service of the United States.^ 
Under this provision the President is vested with a function than 
which, according to a well known writer, there is none **more 
significant as indicating his independent and exalted position. ' ' ^ 

Strangely enough, in spite of this extraordinary grant of 
power, this clause of the Constitution appears to have aroused 
very little discussion and scarcely any serious opposition in the 
Convention of 1787. Some objections were evidently made, but 
rather to the idea of the President's assuming active command 
in the field than to his exercise of the general powers of com- 
mand.^ The members of the Convention probably had not for- 
gotten the trouble and embarrassment caused during the Revolu- 
tion by congressional interference and the lack of a centralized 
control over the army. They were very likely influenced also by 
the precedents in the practise of European states, in former 
plans of union for the colonies, and in the recently established 
state constitutions. As students of political theory they were 
also undoubtedly impressed with the notion that the inherent 
nature of the executive office made it the proper repository for 
the chief command of the military and naval forces.* 

1 Art. II, Sec. 2, CI. 1. 

2 McClain, Constitutional Law in the United States, 210, 

3 See Luther Martin 's letter to the Maryland legislature. Elliot 's De- 
lates, I, 378; Farrand's Beoords, III, 217-218. 

4 This idea was expressed quite recently by Senator Bacon as follows : 
"I want to give my idea as to why the constitution vests in the President 
the office of commander-in-chief. The President is an Executive. Upon 
him devolves the execution of the law and the enforcement of the law; and 
the enforcement of the law must necessarily be, in its last analysis, through 

115 



116 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [116 

There was more discussion and more opposition in the state 
ratifying conventions. Thus Mr. Miller, in the North Carolina 
convention, expressed himself as fearful that the influence of the 
President, particularly over the military, would be too great, that 
he was given extensive powers too easily liable of abuse. *'He 
considered it as a defect in the Constitution, that it was not ex- 
pressly provided that Congress should have the direction of the 
motions of the army. ' ' ^ On the whole, however, the propriety 
of such a power in the President, so far as to give orders and ex- 
ercise a general supervision over military and naval movements, 
was not seriously questioned even in the state conventions, the 
opposition again being largely to the possibility of the President 's 
assumption of personal command of the forces.® 

The general feeling throughout the country was undoubtedly 
expressed by Hamilton when he wrote : ' ' The propriety of this 
provision is so evident in itself, and so consonant to the preced- 
ents of the State constitutions in general, that little need be said 
to explain or enforce it. Even those of them which have, in oth- 
er respects, coupled the chief magistrate with a council, have 
for the most part concentrated the military authority in him 
alone. Of all the cares or concerns of government, the direction 
of war most peculiarly demands those qualities which distin- 
guish the exercise of power by a single hand. The direction of 
war implies the direction of the common strength ; and the power 
of directing and employing the common strength forms a usual 
and essential part in the definition of executive authority. ' ' ^ 

Altho there has been some contention that Congress, by virtue 
of its power to declare war and to provide for the support of the 
armed forces, is a superior body, and that the President, as Com- 
mander-in-Chief, is "but the Executive arm, . . in every de- 
tail and particular, subject to the commands of the lawmaking 

the military arm. Of course the President can not be the Supreme Execu- 
tive unless he has the supreme command of that through which the execu- 
tion of the law must be enforced." Cong. Becord, XLIII, Pt. 3 (60 Cong., 
2 Sess.), 2542-2543. 

5 Elliot's Debates, TV, 114. 

6 Story, Commentaries on the Constitution, II 315; cf. remarks of Pat- 
rick Henry. Elliot's Debates, III, 58-60. 

7 The Federalist, No. 73 (74), (Goldwin Smith ed., p. 409); cf. also 
reply of Mr. Spaight to Mr. Miller. Elliot's Debates, IV, 114-115. 



117] POWERS OF COMMAND 117 

power," s practically all authorities agree that the President, as 
Commander-in-Chief, occupies an entirely independent position, 
having powers that are exclusively his, subject to no restriction 
or control by either the legislative or judicial departments.^ 

The line of demarcation between the war powers of the Presi- . 
dent and those of Congress is not clearly drawn in the Consti- 
tution,^'' nor are the President's powers as Commander-in-Chief j 
specifically described or defined by that instrument. Hence au- 
thorities in general hold that the President as Commander-in- 
Chief may constitutionally do what any military commander may 
do in accordance with the usual practise of carrying on war 
among civilized nations ; that he must be guided in the exercise 
of such power wholly by his own judgment and discretion, sub- 
ject to his general responsibility under the Constitution." Ac- 
cording to the Supreme Court, the extent of these powers must 
be determined *'by their nature and by the principles of our in- 
stitutions. ' ' ^^ For a closer definition we must therefore look to 
the law and usage of the military service, to international law 
and custom, and to the general practise under the Constitution 
and statutes of the United States.^^ 

From these sources we find that the first great power of the 
President as Commander-in-Chief of the armed forces in time of 
war is the general direction of the military and naval operations. ' ' 

8 Senator Bacon in U. S. Senate, Feb. 6, 1906. Cong. Becord, XL, Pt. 3 
(59 Cong., 1 Sess.), 2135. On a later occasion, Senator Spooner replied 
very aptly to a similar suggestion, that such a construction would mean 
that "the Constitution did not constitute the President Commander-in- 
Chief of the Army and Navy, but constituted him the Adjutant-General of 
the Congress." Cong. Becord, XLI, Pt. 2 ( 59 Cong., 2 Sess.), 1131. 

aPomeroy, Constitutional Law (Bennett's ed.), 71; Davis, Treatise on 
the Military Law of the United States, 323 ; Mississippi v. Johnson, 4 Wall,, 
475 497 (1869) ; Ogg & Beard, National Governments and the World War, 
100-101; Secretary Seward in letter to Lord Lyons, 1861, quoted in Wat- 
son, On the Constitution, II, 917; J. W. Garner, in Bevue de Droit Public 
et de la Science Politique, XXXV, 10. 

10 It was attempted by the Supreme Court in Ex parte Milligan, 4 Wall., 
2, 139 (1866) ; see supra, 19. 

11 Finley & Sanderson, The American Executive and Executive Metlwds, 
267; Whiting, War Powers under the Constitution, 82-83. 

12 Ex part.e Milligan, 4 Wall., 2, 139-140 (1866). 

13 Cf. J. W. Garner, in Bevue de Droit Public et de la Science Politique, 
XXXV, 13 (Jan-Mar., 1918). 



118 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [118 

It is the President who wages war. Congress declares war and 
provides the means for carrying it on, but the President decides 
how the war is to be conducted and directs the campaigns. This 
is ''a despotic power," says Burgess,^^ but nevertheless must be 
confided by a sound political science to the President. ''The 
President must have despotic power when he wages war. The 
safety, the life perhaps, of the state requires it." Other author- 
ities also hold that in the field of military operations there are no 
limitations prescribed by the Constitution and the President's 
power is therefore exclusive. Thus Lieber says that the direction 
of military movement "belongs to command, and neither the 
power of Congress to raise and support armies, nor the power to 
make rules for the government and regulation of the land and 
naval forces, nor the power to declare war, gives it the command 
of the army. Here the constitutional power of the President as 
commander-in-chief is exclusive. ' ' ^^ 

It is an interesting question whether the President, under this 
exclusive power, may assume active, personal command of the 
army and navy, in time of war. Authorities do not all agree on 
this point. Some claim that the President is essentially a civil 
officer and that it is not intended that he shall take active com- 
mand in time of hostilities •,^^ others say outright that the Presi- 
dent "has all the powers of personal command;"" while still 
others express themselves as doubtful. Thus Watson thinks it 
by no means certain that the President has such power, since if 
he should undertake to command the military and naval forces 
in time of war, he would necessarily be prevented from executing 
other important duties required of him by the Constitution. 
Watson admits, however, that if the President insisted on assum- 
ing personal command of the forces, it would be difficult and 
probably impossible to restrain him.^^ 

While the expediency of such action on the part of the Presi- 
dent may be doubted, there does not seem to be any ground for 

T-^ Political Science and Comparative Constitutional Law, II, 261. 

15 Lieber, Eemarlcs on Army Begulations, 18 ; see also Watson, On the 
Constitutio7i, II, 913-914; Von Hoist, Constitutional Law of the United 
States, 194. 

16 McClain, Constitutional Law, 210. 

17 Finley & Sanderson, op. cit., 267. 

18 Watson, On the Constitution, II, 919 ; cf. Miller, On the Comtitution, 
163 ; Von Hoist, Constitutional Law of the United States, 197. 



119] POWERS OF COMMAND 119 

questioning his power. The matter was specifically raised, dis- 
cussed and determined in the Constitutional Convention of 1787. 
Thus the New Jersey plan presented by Mr. Paterson on June 
15 authorized the Executive to direct all military operations, 
''provided that none of the persons composing the federal Execu- 
tive shall on any occasion take command of any troops, so as 
personally to conduct any enterprise as General or in any other 
capacity." ^^ Hamilton's plan likewise vested the chief com- 
mand and direction of war in the Executive, but with the proviso 
that "he shall not take the actual command, in the field, of an 
army, without the consent of the Senate and Assembly." ^^ 

The action of the Convention in refusing to adopt any of these 
specific proposals,2i and the further attempts in the state ratify- 
ing conventions to secure amendments expressly forbidding such 
exercise of command by the President,^^ certainly make it clear 
that the framers of the Constitution understood and intended 
that the President should have the right. Hamilton but refiected 
the general interpretation of the Constitution when he referred 
to the President in this connection as the ''first general and ad- 
miral of the Confederacy. " ^^ 

While there is therefore no doubt as to the constitutional right 
of the President to assume personal command of the armed forces 

19 Elliot's Debates, I, 176. 

20 Ibid., Y, 587. 

21 See Luther Martin's letter to the Maryland legislature: "Objections 
were made to that part of the article, by which the President is appoint- 
ed Commander-in-Chief of the army and navy of the United States, and of 
the militia of the several States, and it was wished to be so far restrained, 
that he should not command in person; but this could not be obtained." 
Ibid., I, 378; Farrand's Becords, III, 217-218. 

22 Thus the New York convention proposed an amendment, ' * That the 
President or person exercising his powers for the time being, shall not 
command an army in the field in person, without the previous desire of 
Congress;" while in the Maryland convention a similar amendment was 
submitted, but negatived in committee and never reported.EZiiot's De- 
bates, I, 330; II, 553. In the 1st Congress Mr. Tucker (S. C.) proposed an 
amendment striking out the words "be Commander-in-Chief" from the 
article defining the President's powers and substituting the phrase 
"have power to direct (agreeably to law) the operations." This was 
probably in line with the New York amendment; but on a vote to refer 
to the Committee of the Whole, it was negatived. Annals of Cong., I, 762, 
763. 

23 The Federalist, No. 68 (Goldwin Smith ed., p. 381). 



120 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [120 

at his discretion, the sound construction of the constitutional 
provision is that no such action on his part was contemplated un- 
less in an extraordinary emergency ; that the power of personal 
command was vested in the President principallj for the pur- 
pose of giving him that control over military and naval opera- 
tions which is a necessary attribute of the executive branch of the 
government.^* 

No President has yet seen fit to exercise his right to take per- 
sonal command of the forces in time of war, altho "Washington 
on one occasion during his administration did actually take the 
field in command of militia forces called out to suppress an in- 
surreetion.^^ President Polk also took a keen personal interest in 
the military movements of the Mexican War, and at one time, in 
order to carry his point against a refractory Adjutant-General, 
insisted on his right as Commander-in-Chief to have his instruc- 
tions regarded as a military order to be promptly obeyed.^® 
President Lincoln, while never exercising actual personal com- 
mand, frequently visited his generals in the field, advised with 
them, drew up plans of campaign, and issued among others his 
famous General War Order No. 1 (January 27, 1862), and Spe- 
cial War Order No. 1 (January 31, 1862), the former ordering 
a general movement of the land and naval forces to be begun 
against the insurgents on February 22, the latter ordering an ex- 
pedition against Manassas Junction.^^ 

Presidents McKinley and Wilson seem to have left the active 
direction of military movements entirely to the military and nav- 
al commanders, altho with the modern means of communica- 
tion the President might, much more easily than before, assume 

24 Cf. opinion of Secretary of War Monroe, given to a committee of 
Congress, Feb. 11, 1815. Am. State Papers, Mil. Affairs, I, 606; see also 
Story, Commentaries on the Constitution, II, 315; Elliot's Debates, II, 
366. 

25 Infra, 135, 

26 Diary of JcCmes K. Folk, III, 31. 

27 WorTcs of Alraham Lincoln (Federal ed.), V, 423, 425; Ehodes, His- 
tory of the United States, III, 581. But cf. Lincoln's letter to Gen. Grant, 
Apr. 30, 1864 : ' ' Not expecting to see you before the spring campaign 
opens, I wish to express, in this way, my entire satisfaction with what you 
have done up to this time, so far as I understand it. The particulars of 
your plans I neither know nor seek to know." McPherson, History of the 
Beiellion, 425. 



121] POWERS OF COMMAND 121 

active charge of military and naval operations. ^^ Modern war 
has, however, also added such a heavy burden of civil duties upon 
the President as to make it practically impossible for him to de- 
vote any time to the purely military side, and it is not likely 
that any President will ever in the future attempt to exercise 
his right of personal command. 

As a necessary part of his power to direct the military and 
naval operations, the President in time of war has entire control 
of the movements of the army and navy. Congress has, under 
the Constitution, the sole power to raise and support armies and 
to provide and maintain a navy f^ but after the forces have been 
provided and war has been begun, the President may order them 
anywhere he will for the purpose of carrying on the war to a 
successful conclusion. 

An eminent authority thinks that Congress could probably by 
law forbid the troops being sent out of the jurisdiction of the 
United States in time of peace f^ but in time of war the author- 
ity of the President is recognized as being absolute as to where 
the war is to be conducted, whether to await the onslaughts of 
the enemy and wage a purely defensive war within the bound- 
aries of the United States, or to send the armed forces of the Uni- 
ted States out of the country to carry on an offensive war in the 
enemy territory, in the territory of an ally, or perhaps even in 
the territory of a neutral. "The power to use an army," says 
a distinguished ex- Justice of the Supreme Court, "is co-exten- 
sive with the power to make war; and the army may be used 
wherever war is carried on, here or elsewhere. There is no lim- 
itation upon the authority of Congress to create an army and it 
is for the President as Commander-in-Chief to direct the cam- 
paigns of that army wherever he may think they should be car-'j 
ried on. ' ' ^^ 

As a matter of fact, there never has been any serious doubt as 
to the President's constitutional power to order the regular 

28 See description of how President McKinley kept in touch, with the 
military operations during the Spanish war. Beard, Beadings in Amer- 
ican Politics and Government, 316. 

20 Art. I, Sec. 2, CI. 12, 13. 

30 Eoot, Colonial and Military Policy of the United States, 157. 

31 Charles E. Hughes, "War Powers under the Constitution," in Cen- 
tral Law Jour., LXXXV, 206-214 (Sept. 21, 1917). See also Fleming v. 
Page, 9 How., 603, 615 (1849). 



122 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [122 

forces wherever he may think best in the conduct of a war, wheth- 
er within or without the limits of the United States, nor has any 
President hesitated to make use of that power in any foreign 
war in which the United States has been engaged. Regular 
troops were by order of the President sent to Canada in the War 
of 1812,^2 ^Q Mexico in 1846, to Cuba, Porto Rico, and the Philip- 
pines during the war with Spain, and to France, Italy, and 
Russia during the recent war with Germany.^^ 

Just as the President decides when and where troops shall be 
employed in time of war, so he alone likewise determines how the 
forces shall be used, for what purposes,^* the manner and extent 
of their participation in campaigns, and the time of their with- 
drawal. Thus the troops ordered to France during the recent 
war were sent for the general purpose of waging active war 
against the German military forces and of bringing about their 
defeat ; were with that end in view instructed to cooperate with 
the Allies even to the extent of being intermingled on occasion 
with Allied troops and placed under the command of superior 

32 The act of Feb. 6, 1812, authorized the President to accept 50,000 
volunteers to do duty whenever he deemed proper, which President Madi- 
son said was passed "with a view to enable the Executive to step at once 
into Canada." Writings of James Madison, VIII, 176. 

33 The constitutionality of the President 's action in sending troops to 
France was upheld by Federal Judge Speer in a case decided Aug. 20, 1917. 
See also address by ex-Senator Eoot at Chicago, Sept. 14, 1917, in The War, 
Busian and Political Addresses, 68. 

For an opposite view, see a somewhat bombastic open letter to the Secre- 
tary of War by Hannis Taylor, in which he says : * ' The unauthorized trans- 
portation by the executive power of our conscripted National Militia to the 
battlefields of Europe, in defiance of Section 8, Article I, of the Con- 
stitution, will stand out in the time to come as the most stupendous act of 
illegality in all our history." Cong. Becord, 65 Cong., 3 Sess. (Jan. 20, 
1919), 1728-1729. 

A House resolution (H. J. Res. 166) was introduced July 29, 1919, pro- 
posing an amendment to forbid Congress to conscript armies to serve out- 
side the United States to execute orders of any international body or trib- 
unal. Ibid., 66 Cong., 1 Sess., 3561. 

34 ' ' The policy to be followed by our troops in any country is one to be 
determined by the Executive." Statement of Maj. Gen. Graves in message 
to his troops in Russia, quoted in The Nation, CVIII, 853 (May 31, 1919). 
The Nation comments as follows: "So much for Wilsonian Bealpolitik by 
comparison with the old-fashioned theory that it is the business of Congress 
to declare war." 



123] POWERS OF COMMAND 123 

Allied officers ; and were withdrawn from foreign soil as rapidly 
as possible after that purpose had been accomplished. 

The SibeEiaJi.-e;spedition, while of course intended to aid in a 
general way in bringing about the defeat of the Central Powers, 
had the more limited and particular purposes of saving the 
Czecho-Slovak armies in Russia from destruction, and of steady- 
ing the efforts of the Russians at self-defense and the establish- 
ment of law and order. It was not withdrawn upon the defeat 
of the Central Powers and the conclusion of the armistice, but 
was continued for some time in order ' ' that we, with the concur- 
rence of the great allied powers, may keep open a necessary ar- 
tery of trade and extend to the vast population of Siberia the 
economic aid essential to it in peace time, but indispensable un- 
der the conditions which have followed the prolonged and ex- 
hausting participation by Russia in the war against the Central 
Powers." To that end, Major General Graves, in command of 
the American troops in Siberia, was instructed ''not to interfere 
in Russian affairs, but to support Mr. Stevens" (the American 
director of the Russian Railway Service Corps) in keeping open 
the Siberian railway.^^ In contradiction to this policy of con- 
tinuing the American troops in Siberia, the small contingent sent 
to Murmansk and Archangel in Russia proper was entirely with- 
drawn by July 1, 1919.^" The action in every case was deter- 
mined solely by authority of the President, acting under his pow- 
er as Commander-in-Chief of the army and navy. 

There has been considerable bitter criticism in Congress of the 
President's Russian or Siberian policy; there has also been some 
question as to his power to send and continue troops there, es- 
pecially since the signing of the armistice and the virtual ending 
of the war ; and there have been some attempts to assert for Con- 

35 See statement of President Wilson, July 22, 1919, in response to a 
Senate resolution of inquiry. Cong. Becord, 66 Cong., 1 Sess. (Sept. 3, 
1919), 5075. The President's statement is also printed as Senate Docu- 
ment No. 607. See also statement of the Acting Secretary of State re- 
garding the purposes of the Siberian expedition. Official Bulletin, Aug. 5, 
1918. Secretary of War Baker announced on Jan. 13, 1920, that the Presi- 
dent had authorized the withdrawal of the American forces from Siberia, 
and that the movement of troops would begin at once. 

36 See statement of Gen. March, Chief of Staff, June 16, 1919. 
Hearings iefore the Subcommittee of the Committee on Military Affairs, 
U. S. Senate, 66 Cong., 1 Sess., 50. 



124 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [124 

gress the right to control the movements of the forces and to com- 
pel their withdrawal. Senator Borah (Idaho) in a recent speech 
declared the presence of American troops in Siberia an unlawful 
usurpation of power by the President and demanded their im- 
mediate withdrawal. "We are utterly at sea," he said, ''as to 
why our armed forces are carrying on war in Russia, but what- 
ever is being done in that country in the way of armed interven- 
tion is without authority. . . There can be no plainer usurpa- 
tion of power than to conscript men to war against Germany and 
then to use them to take care of internal conditions in Russia. ' '^^ 
Senator Edge (New Jersey) introduced a resolution June 23, 
1919, not only declaring the state of war terminated, but order- 
ing "That all American soldiers of the forces of the United 
States now in Europe shall be withdrawn from such foreign ser- 
vice without loss of time and be returned to the United States, 
except such soldiers of the United States Regular Army as have 
enlisted specifically for service in Europe. ' ' ^^ Senator McCor- 
mick (Illinois) introduced a similar resolution September 8, ex- 
pressing it as the sense of the Senate ' ' that no additional troops 
be sent overseas except by the express authority of Congress," 
and "that all troops serving in Europe and Siberia should be 
brought home with the utmost dispatch. ' ' ^^ 

Other similar resolutions were proposed from time to time,*" 
but only one was adopted, that by Senator Johnson (California), 
which, however, was merely a request for information as to 
the general policy respecting Siberia and the maintenance 
of troops there.*^ It seems quite clear, therefore, that even 

37 N. ¥. Times, Sept. 6, 1919 ; cf. also statement of Chairman Porter, of 
the House Committee on Foreign Affairs, that the drafted men were sent 
to Siberia with ''absolutely no justification in law." lUcL, Aug. 24, 1919, 
But compare Senator Borah 's remarks in the Senate, Feb. 16, 1909 : ' ' Con- 
gress has not the power to say that an army shall be at a particular place 
at a particular time or shall maneuver in a particular distance. That be- 
longs exclusively to the Commander-in-Chief of the Army." Cong. Record, 
XLIII, Pt. 3 (60 Cong., 2 Sess.), 2452., See also his speech of Nov. 4, 
1919. IMd., 66 Cong., 1 Sess., esp. 8465, 8466. 

3'8 Cong. Record, 66 Cong., 1 Sess., 1629. 

39 IMd., 5284. 

40 By Senators Johnson and Poindexter, and Eepresentatives Rhodes, 
Wood, and Mason. lUd., 65 Cong., 3 Sess., 3188, 8410-3417, 3786; 66 Cong., 
1 Sess., 64, 4336, 4704, 4937. 

41 IMd., 66 Cong., 1 Sess., 63, 1631, 1884, 1977. 



125] POWERS OP COMMAND 125 

under the stress of bitter partisanship and despite all its 
mutterings and criticisms of executive policy, Congress will be 
slow to deny the power of the President as Commander-in-Chief 
to send and maintain troops of the army and navy abroad at his 
discretion, or to assert any definite claim of control for itself. 
On the other hand, the Executive has not hesitated to define its 
policy or to assert its intention of adhering to and exercising its 
powers under the Constitution with respect to the movement of 
troops.*^ 

In connection with his control of military and naval opera- 
tions, the President possesses numerous other powers. In fact, it 
is generally held that, as Commander-in-Chief, he may do prac- 
tically anything calculated to weaken and destroy the fighting 
power of the enemy and bring the war to a successful conclusion, 
subject of course to the rules of civilized warfare prescribed by 
international law and custom.*^ He may employ secret agents 
to obtain information concerning the position, resources, and 
general condition of the enemy f^ he may establish a blockade of 
the enemy's ports, including those of insurgent states as well as 
of a foreign enemy ;*^ he may order an invasion of the enemy's 

42 President Wilson stated, in a letter to Fred McAver of Chicago, that 
the drafted troops in Siberia were being withdrawn as rapidly as they 
could be replaced by volunteers, but indiclted that there was no intention 
of withdrawing the entire expedition for some time. N. Y, Times, Aug. 
27, 1919. Secretary Baker, in a statement to the House Military Affairs 
Committee, Sept. 15, 1919, insisted that the American soldiers in Siberia 
could not be withdrawn because of "real military and humanitarian rea- 
sons." Ibid., Sept. 16, 1919. Eepresentative Mason (111.) on this occasion 
questioned the right of the President to send troops into a country with 
which we are not at war, but was opposed by Representative Kahn (Cal.), 
Chairman of the Committee, who cited as a precedent the sending of ma- 
rines into Haiti. Ibid. See also statement of Gen. March, Chief of Staff, 
before the Senate Subcommittee on Military Affairs, June 16, 1919. Hear- 
ings before the Subcommittee, 50, 51. 

43 Fairlie, National Administration of the United States, 33. 
iiTotten V. United States, 92 U. S., 105, 106 (1875). 

^^ Prise Cases, 2 Black, 635 (1862). Ordinarily such a blockade is es- 
tablished by proclamation of the President. It may, however, be estab- 
lished without this action by the President, but by the commander of 
naval forces as an adjunct to naval operations against other blockaded 
ports and the enemy's fleet. The Adula, 176 U. S., 361, 366-367 (190O). 
President Lincoln established the blockade of the ports of the South by 
proclamations of Apr. 19 and 27, 1861; President McKinley the Cuban 



126 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [126 

country and establish the authority of the United States over it, 
altho he cannot thereby enlarge the boundaries of the United 
States nor extend the operation of our institutions and laws be- 
yond the limits previously assigned to them;*® he may even set 
up, on his own exclusive authority as Commander-in-Chief, a 
temporary government in conquered territory.*^ 

The appointment and dismissal of officers for the army and 
navy is another of the President's prerogatives as Commander-in- 
Chief, but one which is subject to some control by Congress.*^ 
In the first place, no officer can be appointed by the President 
until Congress has created the grade and made provision for it. 
President Polk complained bitterly because Congress refused to 
create the grade of Lieutenant-General during the Mexican War 
and thus permit him to appoint a commander to outrank Scott 
and Taylor. ''My situation," he said, ''is most embarrassing. I 
am held responsible for the War, and I am required to entrust 
the chief command of the army to a General in whom I have no 
confidence. ' ' *^ During the recent war, however, Congress gave 
the President authority (with the consent of the Senate) "to ap- 
point for the period of the existing emergency such general of- 
ficers of appropriate grades as may be necessary. . , " ^° thus 
vesting the President with wide discretionary powers, not only 
of appointment but also of determining what higher grades 
might be necessary. Under this provision, Pershing, Bliss, and 
March were each appointed to the rank of full General, a grade 
thus revived by the President for the period of the war.^^ 

In the second place, the appointment of all officers of the army 
and navy is subject to confirmation by the Senate, unless other- 
wise provided by law.^^ As a matter of fact, confirmation by the 

blockade by proclamations of Apr. 22 and June 27, 1898. Richardson, Mes- 
sages and Papers of the Presidents, VI, 14, 15 ; X, 202-203, 206. 
i& Fleming v. Page, 9 How., 603, 615 (1849). 

47 Infra, Ch. IX, 

48 Cf. Burgess, Political Science and Comparative Constitutional Law, 
II, 261-262. 

49 Diary of James K. Polk, II, 393-394. 

50 Selective Service Act of May 18, 1917 (Public No. 12, 65 Cong.), See 
Sec. 8. 

51 Gen. PersMng has since been commissioned permanent General, by 
authority of act of Congress. See N. Y. Times, Sept. 4, 1919, 

52 Constitution, Art, II, See, 2, CI. 2. 



127] POWERS OF COMMAND 127 

Senate has generally been required only in the case of the higher 
military and naval officers, the rule during the recent war being, 
''That officers with rank not above that of Colonel shall be ap- 
pointed by the President alone, and officers above that grade by 
the President by and with the advice and consent of the Sen- 
ate. "^^ 

Finally, Congress, under its power "to make rules for the gov- 
ernment and regulation of the land and naval forces, ' ' ^* may 
prescribe rules of eligibility governing the appointment and pro- 
motion of officers, and in that way limit to a considerable extent 
the President's power of appointment. It has been held, how- 
ever, that such rules can prescribe only the mode in which va- 
cancies shall be filled, and hence do not confer upon the officer 
next in the order of succession any right to the vacant place, nor 
control the President in his discretionary power to appoint some 
other individual.^^ Congress can in no way dictate what appoint- 
ments shall be made; it can only determine how they shall be 
made and limit somewhat the field of selection by prescribing 
certain rules. Moreover, the President is entirely free to select 
whom he will from among the officers for any particular duty or 
command, without consulting the Senate and without regard 
to seniority in rank. General Pershing was thus chosen to com- 
mand the American Expeditionary Force in the recent war, altho 
he was not the ranking officer in the army at the time. In fact, 
any question that may arise as to the relative rank of officers in 
the various branches of the service is understood to be within the 
power of the President, as Commander-in-Chief, to settle without 
legislation by or consultation with Congress.^® 

The power to dismiss or remove military and naval officers, es- 
pecially in time of war, is likewise considered one of the prerog- 
atives of the President as Commander-in-Chief, and a necessary 

53 Selective Service Act, Sec. 1. 

54 Constitution, Art. I, Sec. 8, CI. 14. 

55 13 Op. Atty. Gen., 13, 14; 29 ibid., 254, 256. See also message of 
President Monroe, Apr, 13, 1822, and veto message of President Harrison, 
Feb. 26, 1891. Eiehardson, op. cit., II, 132, 133; IX, 138. Cf. Taft, Our 
CMef Magistrate and His Powers, 127-128; and Story, Commentaries, II, 
350, n. 2. During the recent war, the rules governing appointments, pro- 
motions, and assignments were announced by General Order. Official U. S. 
Bulletin, Sept. 20, 1918. 

66 Diary of James E. Folic, I, 284-285. 



128 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [128 

incident of his right to appoint them.^^ In fact, it has been held 
by distinguished authority to be an absolute power, tho one that 
ought to be exercised with great discretion,^^ and extends even 
to the removal of officers appointed with the consent of the Sen- 
ate.^^ From the very organization of the government under the 
Constitution till the Civil War, the power to dismiss officers of 
the army and navy from the service was regarded as vested in 
the President by the Constitution, was not questioned, and came 
to be considered as one of the inherent powers of the Executive 
office.^"* Congress in 1862 specifically recognized this power of 
the President in an act ®^ which the Attorney-General later char- 
acterized as "simply declaratory of the long-established law." ^^ 
However, by the acts of March 3, 1865, and July 13, 1866, Con- 
gress divested the President of his absolute power of removal at 
all times, requiring that in time of peace an officer could be dis- 
missed only upon sentence of a court-martial or as commutation 
of such sentence.*^^ In 1867, Congress went further, and in the 
Army Appropriation Act of that year provided that all army 
orders should pass through the General of the Army, who was 
required to keep his headquarters at Washington and who should 
not be removed, suspended, relieved from his command, or as- 
signed to duty elsewhere, except at his own request or by the ap- 
proval of the Senate.®* President Johnson signed this act under 
protest, holding that it in effect deprived the President of the 
command of the army; and having obviously been passed as a 
measure designed to control him in particular, its injustice and 
inexpediency were soon recognized and it was soon repealed.®^ 
The Supreme Court further held, with regard to the act of 1866, 
that it was in effect only a declaration that the power thereto ex- 
ercised by the President of summarily dismissing officers with- 
er Burgess, op. (At., II, 262; Blake v. United States, 103 U. S., 227, 23G 
(1880). 

58 Memoirs of John Quincy Adams, IV, 410. 

sQShurtleff v. United States, 189 IJ. S., 311, 314-315 (1903). 

60 4 Op. Atty. Gen., 1, 609-613; 6 Hid., 5-6; 8 iUd., 230-232; 12 iUd., 
424-426. Cf. United States v. Guthrie, 17 How., 283, 306-307 (1854). 

61 Act of July 17, 1862. 12 Stat, at L., 594, 596 (Sec. 17). 

62 15 Op. Atty. Gen., 421. 

63 13 Stat, at L., 489; 14 ibid., 92. 

64 Act of Mar. 2, 1867. 14 Stat, at L., 486-487 (Sec. 2). 

65 July 15, 1870. 



129] POWERS OF COMMAND 129 

out the consent of the Senate, should not exist in time of peace. 
' ' There was, we think, no intention to deny or restrict the power 
of the President, by and with the advice and consent of the Sen- 
ate, to displace them by the appointment of others in their 
places. ' ' ^^ 

The right of the President to make removals at his discretion 
in time of war remained unimpaired by these acts of Congress, 
and was again specifically recognized during the recent war by 
the Selective Service Act.^^ Efficiency Boards for examining 
into the qualifications of officers were provided for by that stat- 
ute, but it was held that these were to be convened merely as a 
matter of administrative convenience for the information of the 
President, and ' ' do not impair or restrict the power of the Presi- 
dent to discharge for any cause which, in the judgment of the 
President, would promote the public service." It was further 
held that, even tho the President dismissed an officer because of 
the recommendation of an illegally and irregularly constituted 
board, "the legality of an executed discharge by the President 
cannot afterwards be questioned, because of the full and summary 
powers conferred upon him by the statute."*'^ Other opinions 
have likewise upheld the inherent, as well as the statutory, pow- 
er of the President to dismiss officers in time of war, without the 
consent of the Senate, or the recommendation of a board, or trial 
by court-martial.®^ Having once dismissed an officer, however, 
or accepted his resignation, the President cannot revoke that ac- 
tion and thereby restore the officer to his rank and office, but 
must make a new nomination and secure a new confirmation by 
the Senate, if confirmation was required in the first instance.^" 

In spite of the restrictions that have been noted, the Presi- 
dent's power to appoint and dismiss officers is such as to give 
him practically complete control of the army and navy, especial- 
ly in time of war, and to add considerably to his powers and 

(^eBlaJce V. United States, 103 U. S., 227, 236 (1880). 

67 Sees. 1, 9. 

68 Opinions of Acting Judge Advocate General Mayes, May 10 and 
July 15, 1918, in Wigmore, Source-Boole of Military Law and War-Time 
Legislation, 752-755, 790-794. 

69 Cf. opinion of Acting Judge Advocate General Ansell, Apr. 9, 1918. 
Ibid., 731-735. 

TOMimmaclc v. United States, 97 U. S., 426, 435, 437-438 (1888); Mem- 
oirs of John Qmncy Adams, VII, 14. 



130 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [130 

prestige as Commander-in-Chief. It is a power that was feared 
greatly at the beginning/^ and it is a power that needs to be 
exercised with due caution lest political expediency rather than 
military fitness become the criterion for selection/^ On the 
whole, it can be said that the President has in his exercise of this 
tremendous power generally placed the winning of the war above 
any thought of personal or political advantage to himself. 

It might be well here to point out some distinctions between 
the President's control over the army and navy, and his control 
over the militia, for his powers of command with regard to the 
latter are considerably more limited than those with respect to 
the former. In the first place, the President is not at all times 
the commander-in-chief of the militia, as he is of the regular 
army and navy. The report of the Committee on Detail in the 
Convention of 1787 (on August 6) had made the President "com- 
mander-in-chief of the Army and Navy of the United States, and 
of the militia of the several States, ' ' ^^ thus making no distinc- 
tion between the power of command over the militia and that 
over the regular forces, but giving the President complete com- 
mand of both at all times. "When the report came before the 
Convention, however (on August 27), objection was immediately 
made and Mr. Sherman's amendment giving the Executive com- 
mand of the militia only ''when called into actual service of the 
United States" was adopted with but two dissenting votes.''* 
That change in language placed a very definite restriction on the 
power of the President to command the militia only upon the 
stated occasions, it being at other times under the command of the 
executive of each particular state. 

71 See Luther Martin 's letter to the Maryland legislature. Elliot 's De- 
bates, I, 379. 

72 For an interesting insight into the problem that sometimes confronts 
the President in this connection, see Diary of James K. Pdlk, I, 412-413. 
President Wilson has been accused of being guided chiefly by political 
considerations in declining to give ex-President Roosevelt a command dur- 
ing the recent war, and in refusing to assign Gen. Wood to overseas duty. 

'! 3 Madison's Journal (Hunt ed.), II, 86. 

''^Ihid., II, 255. The jealous care with which the states wished to pre- 
serve the militia as distinctively state troops under the command of state 
authorities is shown further by the various amendments proposed in the 
state ratifying conventions. See Elliot's Debates, I, 331, 335; II, 545-546, 
552; III, 660; IV, 108, 245. 



131] POWERS OF COMMAND 131 

In the second place, the President cannot order the militia 
into "the actual service of the United States" and thus become 
its commander-in-chief, simply upon his own authority. The 
Constitution gives the President no authority in that respect, 
but vests in Congress the power "to provide for calling forth 
the militia. " ^^ It is true that Congress has carried out this con- 
stitutional provision by giving the President in turn definite 
statutory authority to call out the militia under certain circum- 
stances; nevertheless it also remains true that while the Presi- 
dent 's power to command the army and navy is complete and ex- 
clusive, he has over the militia, in the words of Hamilton, "only 
the occasional command of such part as by legislative provision 
may be called into the actual service of the Union. ' ' ''^ 

Thirdly, the President is very definitely limited in the pur- 
poses for which he may use the militia, even after it has been 
lawfully called out and placed under his command. The Consti- 
tution gives Congress the right to provide for calling forth the 
militia only "to execute the laws of the Union, to suppress in- 
surrections, and to repel invasions, ' ' ^'^ and of course Congress 
cannot empower the President to use the militia for any other 
purposes. 

The President has, however, been granted as wide powers as 
this constitutional provision will permit. By the Act of Septem- 
ber 29, 1789, Congress authorized the President to call out the 
militia to repel Indian invasions,^^ and the Act of May 2, 1792, 
extended that authority to include all the eases mentioned in the 
Constitution. This act, as well as the Act of February 28, 1795, 
broadened the power of the President still further by authoriz- 
ing him to call out the militia not only in case of actual invasion, 
but also whenever there is "imminent danger of invasion from 
any foreign nation or Indian tribe, ' ' '^^ thus introducing for the 
first time the element of discretion. By means of amendments 

75 Constitution, Art. I, Sec. 8, CI. 15. 

leThe Federalist, No. 68 (69) (GoMwin Smith ed., p. 381), See also 
Johnson v. Sayre, 158 U. S., 109, 115 (1895). Cf. President Fillmore's dis- 
cussion of the distinction between the President's powers in this respect 
in his message of Feb. 19, 1851. Richardson, op. cit., V, 104. 

77 Constitution, Art I, See. 8, CI. 15. 

■J^ Annals of Cong., 1 Cong., II, App., 2199 (Sec. 5). 

isihid., 2 Cong., App., 1370 (See. 1); 3 Cong., App., 1508 (Sec. 1). 



132 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [132 

and supplementary acts, the powers of the President in this re- 
spect have been still further broadened and amplified.^" 

Several important constitutional questions as to the power of 
the President have been raised under the provisions of these acts. 
Thus, when President Madison called out the militia for service 
in the War of 1812, the question immediately arose as to where 
the power rested to determine when the emergency contemplated 
by the Constitution existed. The governors of three states (Mas- 
sachusetts, Connecticut, and Rhode Island) refused to respond to 
the call, in part on the ground that it was within the power of the 
executive of each state to determine whether the need for militia 
was so great as to warrant its being called out, and that in their 
opinion no such emergency existed at that time. In this opinion 
they were supported by the Massachusetts Supreme Court and 
the Hartford Convention.^^ Secretary of War Monroe, however, 
dissented vigorously from this view and held that it was within 
the discretion of the President alone to determine the existence 
of a constitutional exigency for calling out the militia,^^ He was 
supported at the time by the committee of Congress chosen to 
investigate the situation,®^ and later by the Supreme Court,^* and 
it is now generally recognized that the President has exclusive- 
ly this discretionary authority. 

Another much-disputed question concerns the extent to which 
the President may use the militia outside the limits of the Uni- 
ted States. In the War of 1812, in the Seminole War of 1818, 
and in the Mexican War of 1846, the militia was ordered out and 
actually used across the border of the United States,^^ the action 

80 Acts of July 29, 1861; Dick Militia Act of 1903; National Defense 
Act of 1916. 12 Stat, at L., 281; 32 ihid., 775, 776; 39 ibid., 166, 201. 

81 McMaster, History of the People of the United States, III, 544-546; 
IV, 251; Am. State Papers, Mil. Affairs, I, 605, 610-612; 8 Mass., 548, 
549. 

s2Am. State Papers, Mil. Affairs, 1, 605-606. 

S3 See its report, ibid., I, 604. 

Si Martin v. Mott, 12 Wheat., 19, 31-32 (1827); Luther v. Borden, 7 
How., 1, 43 (1848). The various occasions upon which the militia has been 
called into the federal service are cited by Quincy "Wright in ' ' Military 
Administration, ' ' in Report of the Efficiency and Economy Committee, 
State of Illinois, 1915, 897-903. 

85 McMaster, op. cit., Ill, 438; IV, 12-18; Quincy Wright, op. cit., 898, 
899. 



133] POWERS OF COMMAND 133 

in every case being based on the authority for its use in repelling 
invasions. There was some attempt in Congress in 1812 to give 
the President definite statutory authority to use the militia forces 
outside the United States, but after a debate in which most of 
the members seemed to think such use unconstitutional, the mat- 
ter was left unsettled.®^ In the Seminole War of 1818, specific 
authority was given to use the troops (consisting largely of mil- 
itia) across the Florida border in case of necessity,^^ and in 
the Mexican War the President was expressly authorized to call 
out militia to serve during the war, which it was known would 
be waged on enemy soil.^® Quite recently Congress again showed 
its inclination to permit the use of militia outside the limits of 
the United States when in the amendment of 1908 to the Dick 
Militia Act of 1903, it was provided that when called out, "the 
militia shall continue to serve during the time so specified, either 
within or without the territory of the United States unless sooner 
relieved by the order of the President. " *^ A similar provision 
was included in the Act of February 16, 1914, with regard to 
the naval militia. ®° 

The constitutionality of these provisions has been in dispute. 
A portion of the militia ordered into Canada in 1812 refused, on 
constitutional grounds, to cross the border, and a high authority 
thinks it doubtful whether any military court could have vindi- 
cated its jurisdiction had it attempted to punish this disobedi- 
ence.^^ A portion did cross, however, and the precedents of the 
wars of 1812, 1818, and 1846, would seem to be authority for the 
view that militia may be used outside the United States if neces- 
sary to repel invasion. Attorney-General Wickersham took that 

S6 Annals of Cong., 12 Cong., I, 728-802; Elliot's Debates, IV, 459-460; 
McMaster, op. cit., Ill, 438. 

87 See message of President Monroe, Mar. 25, 1818. Am. State Papers, 
Mil. Affairs, I, 681; letter of See. of War Calhoun to Gen. Gaines, Dee. 16, 
1817. IMd., 689. 

ssQuincy Wright, op. cit., 899; cf. Upton, Military Policy of the United 
States, 196-197; Act of May 13, 1846. 9 Stat, at L., 9 (Sees. 1, 2). 

89 35 Stat, at L., 399, 400 (See Sec. 3). 

90 38 ibid., 283, 284 (Sec. 4). 

91 Ordronaux, Constitutional Legislation in the United States, 504. Mc- 
Master seems to think the refusal of the militia to cross was due to 
cowardice rather than to any constitutional scruples. History of the People 
of the United States, IV, 12. 



134 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [134 

view in an opinion rendered in 1912: "If the militia were 
called into the service of the General government to repel an in- 
vasion, it would not be necessary to discontinue their use at the 
boundary line, but they might (within certain limits, at least) 
pursue and capture the invading force, even beyond that line, 
and just as the Regular Army might be used for that pur- 
pose. ' ' ^^ Pomeroy, however, holds that "in no case can they be 
compelled to serve without the territory of the Union. The laws 
must be executed where they have force, and that is only within 
the country itself. Insurrections and invasions must be internal. 
We do not repel an invasion by attacking the invading nation 
upon its own soil. ' ' The furthest he is willing to go is to admit 
that the militia may be called out before the invaders have set 
foot upon our territory. "It is a fair construction of language 
to say that one means of ' repelling ' an invasion is to have a force 
ready to receive the threatened intruders when they arrive. ' ' ^^ 
While there may thus be some doubt as to whether, or to what 
extent, the militia may be used outside the United States in 
repelling invasions, practically all authorities seem to agree 
that it cannot be used, as militia, for the purpose of invading a 
foreign country or carrying on an offensive war outside the juris- 
diction of the United States. Thus Attorney-General Wicker- 
sham, in the same opinion in which he held that militia might be 
taken across the border to repel an invasion, held the act of 1908 
unconstitutional in so far as it authorized the use of the militia, 
as such, for the purposes of warfare in foreign countries.^* Judge 
Advocate General Davis in 1908 had rendered an opinion to the 
contrary, arguing that a declaration of war is a law for the ex- 
ecution of which the militia may be called out and sent wherever 
necessary to carry out its purposes ; ^^ but the weight of authority 
is in support of the view that the militia cannot as such be sent 
out of the United States for the purposes of a foreign war.^'' 

92 29 Op. Atty. Gen., 322, 324. 

93 Pomeroy, Constitutional Law (Bennett's ed.), 387. 

94 29 Op. Atty. Gen., 329. 

95 See Cong. Becord, XLII (60 Cong., 1 Sess.), 6943; cf. opinion of 
Asst. Atty. Gen. Boyd on the position of the militia in the Spanish "War. 22 
Op. Atty. Gen., 225, 227-228; 536, 540. 

96 Pomeroy, Constitutional Law, 387; Von Hoist, Constitutional Law, 
170; Ordronaux, Constitutional Legislation, 501-502; Dig. Ops. J. A. G. 
(ed. 1901), 483. 



135] POWERS OF COMMAND 135 

Finally, with regard to the appointment of officers for the com- 
mand of the militia, the powers of the President are very much 
limited. The Constitution definitely reserves to the states the 
appointment of such officers,^^ but the Constitution is not clear 
as to what authority may appoint the commanding officers when 
several different militia units, or militia from several different 
states, are called into the service of the United States. 

There is no doubt that the President himself may take personal 
command on such occasions, since he is made commander-in-chief 
of the militia "when called into the service of the United 
States," as he is of the regular army and navy at all times. 
President Washington was not only clear as to his right to take 
personal command of the militia forces upon such occasions, but, 
in the case of the Whiskey Rebellion in 1794, was also convinced 
of the necessity of exercising that right. He assumed active com- 
mand of the militia forces assembled to crush the insurrection, 
visited the place of rendezvous, and personally directed the for- 
ward movement of the troops, living and marching with them as 
active commander in the field from September 25 to October 20, 
when, as he informed Congress in his message of November 20, 
' ' if the state of things had afforded reason for the continuance of 
my presence with the army, it would not have been withholden. 
But every appearance assuring such an issue as will redound to 
the reputation and strength of the United States, I have judged 
it most proper to resume my duties at the seat of Government, 
leaving the chief command with the Governor of Virginia (Ma- 
jor-General Henry Lee)."^® There was apparently some criti- 
cism of Washington's course at the time as being unconstitu- 
tional, which the President denounced as ''impertinence,"^^ al- 
tho he was careful to say that ''imperious circumstance alone" 
could justify his absence from the seat of government while Con- 
gress was in session.^"" 
Washington's action in this ease was not of course a case of 

97 Art. I, SeG. 8, CI. 16. 

98 Am. State Papers, Misc., I, 84 ; See also letters of Washington to 
Maj. Gen. Daniel Morgan, Oct. 8, 1794, and to Maj. Gen. Lee, Oct. 20, 
1794. Writings of George Washington, XII, 469-470, 479-480; cf, Oliver, 
Alexander Hamilton, 346-347. 

99 Writings of George Washington, XII, 474. 
^00 Hid., 469. 



136 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [136 

exercising personal command in time of actual war, but of domes- 
tic trouble. Nevertheless it is significant as showing that Wash- 
ington did not hesitate to leave his civil duties to take active 
command of troops in the field, even when Congress was in ses- 
sion, and it is not at all unlikely that he would have done the 
same in case of more serious difficulties with foreign powers. 

As a matter of fact, it was seriously asserted during the "War 
of 1812, that when the militia was called into the service of the 
United States, the President could not delegate his right of com- 
mand to any officer — in other words, that he could under no 
circumstances appoint any other officer to command militia 
forces — ; but that whenever different detachments of militia 
were called out, or militia from different states, the President 
was under the obligation of assuming personal command. This 
was the contention of the governors of the three states refusing 
to furnish militia, when, in reply to President Madison's call 
upon the militia for service during that war, they gave as one 
reason for objecting to letting the militia out from their juris- 
diction, "That when the militia of a State should be called into 
the service of the United States, no officer of the regular army 
had a right to command them, or other person, not an officer of 
the militia, except the President of the United States in 
person. ' ' ^°^ 

This view of the governors was sustained at the time by the 
Massachusetts Supreme Court,^°^ but was later vigorously con- 
demned by Secretary of War Monroe, in an opinion given to a 
committee of Congress, February 11, 1815, in which he said that 
such a construction was one "for which I can see nothing in the 
Constitution to afford the slightest pretext." He maintained 
that the President was under no greater obligation to command 
the militia in person than the regular troops; that the power to 
command both was vested in him principally for the purpose of 
giving him that control over military and naval operations which 
is a necessary attribute of the executive branch of the govern- 
ment; that his actual presence with the troops, either militia or 
regular forces, was under no circumstances necessarily contem- 

101 Am. State Papers, Mil. Affairs, I, 605, 610-611. 

102 iMd., 611-612 ; 8 Mass., 548, 550. Cf. also debate in Congress, Apr. 
17, 1812. Annals of Cong., 12 Cong., 1 Sess., II, 1324. 



137] POWERS OF COMMAND 137 

plated by the Constitution ; that ' ' in construction of law he is 
oommander-in-chief , though not present. ' ' ^°^ 

Monroe's position with regard to the meaning of the Constitu- 
tion was eminently sound. It can hardly be imagined that the 
framers of the Constitution intended anything else than that the 
President should be the judge as to the wisdom and necessity of 
his personal presence with the troops ; still less can it be imagin- 
ed that any distinction was intended between the President 's ob- 
ligations in that respect toward the militia and the regular 
forces. The general practise on all occasions upon which the 
militia has been called out, as well as authoritative opinion, would 
therefore indicate that when the militia has been called into the 
service of the United States, it comes under the control of the 
President as Commander-in-Chief, and may be commanded by 
him personally or by any officer designated by him, whether of 
the regular or militia forces.^"* 



103 Am. State Papers, Mil. Affairs, I, 606. 

104 Ordronaux, Constitutional Legislation in the United States, 505 ; 2 Op. 
Atty. Gen., 711; Story, Commentaries, II, 316 n; Am, State Papers, Mil. 
Affairs, II, 102. 



CHAPTER VIII 

POWERS OF MILITARY JURISDICTION 

For the exercise of military jurisdiction, two principal mili- 
tary tribunals have come into being — courts-martial, for the 
trial of offenders against military law, and military commissions, 
for the trial of offenders against the laws of war and under mar- 
tial law.^ The authority of the former is conferred and defined 
largely by statute, under the power given to Congress "to make 
rules for the government and regulation of the land and naval 
forces ; " ^ while the authority of the latter is derived principally 
from the common law of war.^ 

Altho the authorization of courts-martial is thus in the hands 
of Congress, their control afterwards rests almost exclusively 
with the executive branch of the government. They are created, 
in every case, by military order issued by commanding officers 
having authority under the Articles of War to call them into 
being.* "They are creatures of orders, the power to convene 
them, as well as the power to act upon their proceedings, being 
an attribute of command. ' ' ^ 

1 For the distinction between military law and martial law, see Manual 
for Courts-Martial, TJ. S. Army (ed. 1917), 1-2; Davis, Treatise on the Mili- 
tary Law of the United States (2nd ed.), 5; Birkhimer, Military Govern- 
ment and Martial Law (2nd ed.), 371-391, See also an excellent tabular 
statement in Davis, op. cit., 12. 

2 Constitution, Art. I, Sec. 8, CI. 14. The rules enacted by Congress un- 
der this provision are for the most part included in what are called the 
Articles of War. The latest revision of these may conveniently be found in 
Marmal for Courts-Martial, 305-329 (App. I) ; also a concise history of the 
Articles in the same Manual, ix-xiii. 

3 See Lieber 's Instructions for the Government of Armies of the United 
States in Time of War, G. O. 100, A, G. 0., 1863, in Birkhimer, op. cit., 
635. 

4 Davis, Treatise on Military Law, 16. 

5 Dig. Ops. J. A. G., (ed. 1901), 283. 

138 



139] POWEES OF MILITARY JURISDICTION 139 

The President is expressly authorized by statute to convene 
general eourts-martial under certain circumstances.^ He is by 
no means, however, limited to that specific case, nor dependent 
upon statutory authority, but is empowered to convene such 
courts-martial ' ' generally and in any case, ' ' by virtue of his con- 
stitutional authority as Commander-in-Chief.^ In an opinion 
rendered June 6, 1877, Attorney General Devens, after reviewing 
the law and precedents on this subject, said: "The authority of 
the President to appoint general courts-martial, in cases wherein 
he is not expressly authorized so to do by Congress, may there- 
fore be regarded as well established. It rests directly upon the 
provision of the constitution which makes him Commander-in- 
Chief, as interpreted by the law and usage of the military service 
existing when that instrument was framed ; it is sustained by the 
doctrine laid down in American works of authority on courts- 
martial, the views expressed by one of the standing committees 
of the House (that on Military Affairs) whose special business it 
is to make itself conversant with subjects of this character, and 
an official opinion of the late distinguished head of the Bureau 
of Military Justice, Judge Holt; and, moreover, it is confirmed 
by long-continued practice, extending back nearly to the begin- 
ning of the Government. ' ' * 

That power of the President has further been supported by 
the Judiciary Committee of the Senate ; ^ and it has been exer- 
cised on numerous occasions, both before and after the passage 
of the statute in question, notably in the cases of Brigadier Gen- 
eral Hull (1813), Major General Wilkinson (1814), Major Gen- 
eral Gaines (1816), Major General Twiggs (1858), Brigadier 
General Paine (1865), and many others.^" The power so exer- 
cised is "a striking illustration," as was said by one authority, 
" of an undefined constitutional power, for it is nothing less than 
the power to constitute tribunals with judicial jurisdiction ex- 
tending even to trials for capital offenses. ' ' ^^ 

6 Act of May 29, 1830. 4 Stat, at L., 417. 

7 Swaim v. United States, 165 XJ. S., 553, 558 (1897) ; Dig. Ops. J. A. G., 
568; Davis, op. cit., 17. 

8 15 Op. Atty. Gen., 302-303. See also iUd., 297-301. 

9 Eeport No. 868, Mar. 3, 1879, 45 Cong., 3 Sess., cited in Davis, op. cit., 
17, n. 

10 See list of courts-martial convened by order of the President in 15 
Op. Atty. Gen., 301-302. 

11 Lieber, Bemarlcs on Army Begulations, 25. 



140 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [140 

The fact that military commanders subordina,te to the Presi- 
dent may also upon occasion convene courts-martial, can in no 
sense be understood as a limitation upon the President's consti- 
tutional power to summon these courts at his discretion. *'A 
military officer cannot be invested with greater authority by Con- 
gress than the commander-in-chief, and a power of command 
devolved, by statute, on an officer of the Army or Navy is neces- 
sarily shared by the President. . . Since the earliest legisla- 
tion of our Government it has undoubtedly been understood and 
intended that whatever powers were granted to general officers 
were, at the same time, granted and intended to be shared by the 
President . . . whose name is understood as written in 
in every statute which confers upon a military officer military 
authority." ^^ 

The President may, however, act through his subordinates. 
Thus, a convening of a general court-martial by the Secretary of 
"War is held to be in law a convening by the President, and as 
legal as if the President himself had signed the order, such act of 
the Secretary being purely administrative and in law the act of 
the President whom he represents.^^ 

The constitution of general courts-martials is also subject to 
the control of the Executive. The appointing authority, 
whether it be the President or a subordinate commanding offi- 
cer, designates the number of officers, between the statutory 
maximum (13) and minimum (5), that are to constitute any 
particular court in any case, and his decision is final.^* Even 
during a trial members of a court may be relieved from duty 
with the court and ordered to other service, or new members 
may be added, without affecting the functioning of the court or 
the validity of its proceedings, provided merely that the mem- 
bership is not reduced below the minimum nor increased beyond 
the maximum.^^ Even the reduction of a court below the mini- 
mum does not dissolve it, its sittings being merely interrupted 
until sufficient new members are added, and the validity of its 
proceedings being unaffected. "Thus the membership of the 

12 Davis, op. cit., 17, n ; cf. 8th Article of War, in Manual for Courts- 
Martial, 309-310. 

13 Dig. Ops. J. A. G., 290, 568, 644-645. 

^•^ Martin v. Mott, 12 Wheat., 19, 34-35 (1827). 

15 Of course there are certain rules requiring the reading of the previous 
record to the new members, etc., but there is in no sense a retrial. 



141] POWERS OF MILITARY JURISDICTION 141 

court, both as to numbers within statutory limits and as to per- 
sonnel, is entirely within the control of the appointing or 
superior military authority at all times. ' ' ^^ 

The President also has entire control over the methods and 
procedure of courts-martial.^" The procedure for preferring 
charges and bringing the accused to trial is prescribed almost 
exclusively by regulations and the customs of the service, while 
the rules of evidence are those of the federal courts as modified 
by executive regulations. 

Likewise, the President may to a large extent control the find- 
ings and sentence of courts-martial. The Articles of War ex- 
pressly provide that the approval of the appointing officer or of 
his successor in command is a condition precedent to the execu- 
tion of any sentence, and that the appointing authority may ap- 
prove or disapprove the finding, or approve or disapprove the 
whole or any part of the sentence.^^ The President acts as the 
reviewing authority in all cases tried by courts-martial convened 
by himself, either under his general authority as Commander- 
in-Chief, or as expressly provided by statute, in cases of sen- 
tences respecting general officers, in cases of sentences of death 
or dismissal adjudged in time of peace, and in all cases submit- 
ted to him for action in time of war. He may approve or dis- 
approve in whole or in part the findings or the sentence, or he 
may mitigate the punishment.^^ 

Also, by custom of the service, the President or other appoint- 
ing authority may return the record in any case for reconsidera- 
tion and revision, whether the finding is guilty or not guilty. 
A rule of procedure prescribed by President Wilson, effective 
August 10, 1919, modified this in so far as it abolished the power 
to return a finding of acquittal for reconsideration or any sen- 
tence for revision upward,^" but of course another President or 

16 E. M. Morgan, in Yale Law Jour., XXIX, 60-61. 

17 See 38th Article of War, in Manual for Courts-Martial, 314, 

18 46tli and 47th Articles of War. IMd., 315-316. 

-i^^Big. Ops. J. A. G., 568-569. But when such approval or disapproval 
has once been given and the accused duly notified, it is beyond the power 
of the President to change his decision, even though his action may after- 
wards be found to have worked an injustice. 15 Op. Atty. Gen., 290, 297. 
Of course the President may still pardon the accused, if punishment is 
unexecuted. 

20 G. O. 88, W. D., sec. 1, July 14, 1919, quoted in Yale Law Jour. 
XXIX, 63, n. 



142 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [142 

President Wilson himself might revoke this order and thus re- 
store the former practise. While the Executive has thus almost 
complete control over the findings and sentences of courts-mar- 
tial, Congress has no power whatever either to revise or reverse 
their judgments.^^ 

As in the case of the convening of courts-martial, so the action 
of the President respecting their procedure, findings, and sen- 
tence, while it should be the result of his own judgment,^^ need 
not be under his own hand,^^ any action of authorized subordi- 
nates, such as the Secretary of War and the Secretary of the 
Navy, being presumed in law to be the act of the President.^* 
But confirmation of findings and sentence by some Executive 
authority being required in all cases before execution of sentence, 
courts-martial can hardly be considered as anything but advisory 
bodies, with the power of making recommendations or of report- 
ing findings of fact and conclusions of law to a non-judicial 
superior, whose principal function is that of an executive.^^ 
"The system then is clearly one of review by superior military 
authority, which may, but need not, ask or follow the opinion of 
legal advisers, and is in no respect judicial. . . The principle 
at the foundation of the existing system is the supremacy of 
military command. To maintain that principle, military com- 
mand dominates and controls the proceeding from its initiation 
to the final execution of the sentence. ' ' ^^ 

Courts-martial differ widely, therefore, from civil courts. The 
latter are created by statute, which also describe their composi- 
tion, define their jurisdiction and procedure, and determine the 
times and places of their sessions. Courts-martial, tho au- 
thorized by statute, are created and dissolved in every case by 
executive authority ; the Executive likewise determines their com- 
position, defines their procedure, and controls their findings and 

21 Am. State Papers, Mil. Affairs, V, 17-18. 
z2BunUe v. United States, 122 U. S., 543, 557 (1887). 
23United States v. Fletcher, 148 U. S., 84, 88-89 (1893). 
2iIUd., 91; United States v. Page, 137 U. S., 673, 679-680 (1891) ; Bish- 
op V. United States, 197 U. S., 334, 341-342 (1905). 

25 Glenn, The Army and the Law^ 35-42. 

26 E. M. Morgan, op. cit., 65, 66. The opinion of the Judge Advocate 
General is in some eases required before execution of sentence, but only 
by General Order. His advice is generally followed by the reviewing au- 
thority, but not necessarily, and it has been disregarded. 



143] POWERS OF MILITARY JURISDICTION 143 

sentences. It therefore seems correct to say, as do most authori- 
ties, that courts-martial are no part of the judiciary of the United 
States, but simply agencies or instrumentalities of the 
Executive.^'' 

Military commissions as contrasted with courts-martial, are of 
comparatively recent origin in the United States, having been 
initiated by General Scott in Mexico in 1847."^ Courts-martial, 
as has already been noted, are instituted for the trial of offend- 
ers against military law, that is, their jurisdiction is restricted 
by statute to military persons and to certain specific offences 
defined by law. Hence other tribunals have been found neces- 
sary for the trial of civilians as well as military persons, who are 
accused of criminal acts contrary to the common laws of war and 
under martial law, and for this purpose the military commissions 
have been established. Thus the military commission initiated 
by General Scott was mainly for the punishment of murder, rob- 
bery, and other violent crimes, committed either by civilians or 
military persons, and not at that time cognizable by a court- 
martial. At the same time another tribunal, called the ' ' council 
of war," was inaugurated for the punishment of offenses pecu- 

27 Davis, op. cit., 15; Dig. Ops. J. A. G., 283; Willoughby, Constitutional 
Law, II, 1197. S. T. Ansell, recently Acting Judge Advocate General, 
admits this conclusion, but criticizes severely the system that makes such 
a conclusion necessary. See his article, "Military Justice," in Cornell 
Law Quar., V, 11-17 (Nov. 1919), esp, 5-7. But compare the Supreme 
Court opinion approving the following statement by Attorney General 
Bates: " The whole proceeding from its inception is judicial. The trial, 
findings, and sentence are the solemn acts of a court organized and con- 
ducted according to the prescribed forms of law. It sits to pass upon 
the most sacred questions of human rights that are ever placed on trial 
in a court of justice; rights which, in the very nature of things, can never 
be exposed to danger nor subjected to the uncontrolled vnll of any man, but 
which must be adjudged according to law." BunMe v. United States, 122 
U. S., 543, 558 (1887). For an excellent review and criticism of the present 
court-martial system, see an article, already occasionally referred to, by 
E. M. Morgan, "The Existing Court-Martial System and the Ansell Ar- 
ticles," Yale Law Jour., XXIX, 52-74 (Nov., 1919). For a defense of the 
present system, see an article by G. G. Bogert, professor of law in Cornell 
University and recently Judge Advocate of the 78th Division, "Courts- 
Martial: Criticisms and Proposed Reforms," in Cornell Law Quar., V, 18- 
47 (Nov., 1919). 

28 See Gen, Scott's G. 0. No. 287, Sept. 17, 1847, in Birkhimer, op. cit., 
581-583 (Appendix I, Par. 10, 11.). 



144 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [144 

liar to war, and especially crimes by members of guerilla bands. 
Early in the Civil War these two tribunals were, by practise of 
the military commanders and sanctioned by the War Depart- 
ment, united into the one court called the "military com- 
mission. ' ' ^^ 

The authority for the creation of military commissions may 
therefore be said to be the same as that for the prosecution of 
war and for the exercise of military government and martial 
law — they are ' ' merely an instrumentality for the more effi- 
cient execution of the laws of war, ' ' ^° and as such are but an- 
other agency of the Executive. Tho derived from the common 
law of war, the authority of military commissions has been rec- 
ognized in statutes,^^ in executive proclamations,^^ in opinions 
of Attorneys-General,^^ and in rulings of the Supreme Court,^* 
so that it is now "as well known and recognized in the laws of 
the United States as a court-martial." ^^ 

The President has practically complete control over the mili- 
tary commissions. There is no statute prescribing how or by 
whom they are to be constituted, or how they are to be composed. 
In practise, however, they have been created by the same authori- 
ties as are empowered to order courts-martial, which means the 
President himself at his discretion or his military commanders 
acting under his authority. Attorney-General Speed in 1865 
upheld the right of the President to create such military tribun- 
als even for the trial of non-military persons — in this case the 
assassins of President Lincoln : " I do not think, ' ' he said, 
"that Congress can, in time of war or peace. . . create mili- 
tary tribunals for the adjudication of offences committed by 
persons not engaged in, or belonging to, such forces. . . But 
it does not follow that because such military tribunals cannot be 

29Winthrop, Abridgment of Military Law (2nd ed.), 331-332. 
so Ibid., 331. 

31 Acts of Mar. 3, 1863 (sec. 30) ; July 2, 1864 (see. 1) ; July 4, 1864 
(sees. 6, 8) ; Mar. 2, 1867 (sec. 3); and several later appropriation acts. 

32 Proclamations of Sept. 24, 1862 and Apr. 2, 1866. Richardson, Mes- 
sages and Papers of the Presidents, VI, 98-99, 429-432. 

33 5 Op. Atty. Gen., 55; 11 ibid., 297; 12 ibid., 332; 13 ibid., 59; 14 
ibid., 249. 

34 Ere parte Vallandigham, 1 Wall., 243 (1863); Ex parte Milligan, 4 
Wall., 2 (1866). 

35 Davis, Treatise on Military Law, 308, n. 



145] POWERS OF MILITARY JURISDICTION 145 

created by Congress, . . that they cannot be created at all. ' ' 
The Attorney-General held that under the laws of war, which 
constitute the greater part of the law of nations and therefore 
are a part of the law of the land, military commanders are au- 
thorized to create and establish military commissions or other 
tribunals for the trial of offenders against the laws of war, 
whether these offenders are active or secret participants, that 
' ' obedience to the Constitution requires that the military should 
do their whole duty ; they must not only meet and fight the ene- 
mies of the country, in open battle, but they must kill or take the 
secret enemies of the country, and try and execute them accord- 
ing to the laws of war. ' ' ^'^ 

The composition of military commissions is entirely within the 
authority of the President to determine. There being no statu- 
tory maximum or minimum as to the number of members, as in 
the case of courts-martial, the discretion of the President is even 
wider than for those tribunals. Military commissions have, how- 
ever, usually been composed of five members; less than three 
would be contrary to precedent; but any number would be 
legal. ^^ 

The jurisdiction of military commissions is not defined by 
statute, but extends in practise to violations of the laws of war, 
whether by civilians or military persons, in occupied enemy ter- 
ritory or in territory under martial law.^® The power of the 
President to institute military government over occupied terri- 
tory is exclusive,^^ and in that respect he controls the jurisdic- 
tion of military commissions. The power to institute martial 
law, while more doubtful, is generally held to belong properly, in 
time of war, to the Executive, as Commander-in-Chief. "The 
power of the Executive to prosecute a war precipitated upon the 
country carries with it by necessary implication," says one au- 
thority, "the incidental power to make use of the necessary and 
customary means of carrying it on successfully. If he deems the 

36 11 Op. Atty. Gen., 297, 298, 299, 308, 316. 

37Winthrop, op. cit., 333; Dig. Ops. J. A. G., 463. The military commis- 
sion convened by order of President Johnson for the trial of Lincoln's 
assassins was composed of 9 members. See Special Orders No. 211 and 216, 
May 6 and May 9, 1865, in Richardson, op. cit., VI, 335-336, 336-337. 

38Winthrop, op. cit., 333; Dig. Ops. J. A. G., 464. 

39 Infra, Ch. IX. 



146 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [146 

placing any district under martial law a proper measure, it is 
difficult logically to deny him the right to do it. " ^° In practise, 
martial law is always instituted by Executive authority,*^ and 
hence military commissions are dependent upon the action of the 
President for their jurisdiction in that respect also. The viola- 
tions of the laws of war that come under the jurisdiction of the 
military commissions in these cases have been held to include all 
cases which do not come within the jurisdiction conferred by 
statute on courts-martial,*^ and in practise have included almost 
every conceivable offense, from the slightest sort of intercourse 
with the enemy to espionage and murder.*^ 

In addition to the jurisdiction conferred under the common 
law of war and martial law, military commissions may be used 
as a temporary substitute for the local civil courts, when those 
courts, under the stress of circumstances, have ceased to func- 
tion, tho in such cases their jurisdiction should properly be 
regulated by the local statutes governing the courts for which 
they are substitutes.** But whether exercising jurisdiction 
under the laws of war or as a substitute for the local courts, 
there is practically no limit to that of the military commissions 
— if they have jurisdiction of the person and the offence, they 
may proceed with the trial of offences committed even before the 
initiation of military government or martial law.*^ 

The procedure of military commissions, not being prescribed 
by statute, is likewise under the control of the Executive. 
In practise, the rules of procedure laid down for courts-martial 

40 Birkhimer, op. cit., 378. He admits, however, that martial law may 
be invoked "either by the executive or the law-making power, although 
the former generally will be the case." Ibid., 390. But Pomeroy criticizes 
the position of the dissenting justices in Ex parte Milligan (4 Wall., 2) 
that Congress may, under certain circumstances, declare martial law, as 
"utterly indefensible." Constitutionul Law, 594. Cf. Glenn, The Army and 
the Law, 185. 

41 Instances of the proclamation of martial law by Executive authority 
are given in Winthrop, op. cit., 329-330. 

-' -i^Ex parte Vallandigham, 1 Wall., 243, 249 (1863). 

43 See list of offences charged as ' ' violations of the laws of war ' ' dur- 
ing the Civil War, in Big. Ops. J. A. G., 465; also in Davis, op. cit., 310, n. 

44 Big. Ops. J. A. G., 468. 

^5 IMd., 464; Birkhimer, op. cit., 533. But violations of the laws of war 
cannot legally be tried after the war or emergency has terminated. Win- 
throp, op. cit., 334. 



147] POWERS OF MILITARY JURISDICTION 147 

are generally observed, and authorities hold that these rules 
should apply as consistently as possible. That is not obligatory, 
however, and the powers of military commissions not being de- 
fined by law, their proceedings are legal even if details that are 
required in courts-martial or in civil courts are omitted, such as 
the administering of a specific oath to members of the court, or 
giving the accused the opportunity of challenge.^® 

There are likewise no statutes governing the power of the mili- 
tary commissions to inflict punishments, hence it is a power 
practically without restriction. These tribunals are not limited 
to the penalties known to courts-martial, nor are the strictly 
military penalties — dismissal from the service, dishonorable 
discharge, and the like — generally appropriate, since the per- 
sons to be punshied are usually civilians. The punishments of 
death, imprisonment, or fine are those usually infiicted by mili- 
tary commissions, but, especially during the Civil War, have 
included also confiscation of property, forfeiture of licenses to 
trade, expulsion from certain sections of the country, furnishing 
bonds for good behavior, and taking the oath of allegiance.*'^ In 
no case are the proceedings or sentences of military commissions 
subject to appeal to, or reversal by, any civil court.*® 

Military commissions, deriving their authority and jurisdic- 
tion from military usage and the common law of war, and their 
creation, composition, procedure, and decisions being subject to 
the complete control of the Executive, are therefore, even more 
than courts-martial, merely agencies of the Executive in his ca- 
pacity as Commander-in-Chief. Through the courts-martial, as 
has been noted, the President is enabled to control the discipline 
of the armed forces and enforce military law. Through the mili- 
tary commissions he controls the administration of justice in war 
time, not only in the theater of active operations, but also in 
places declared by him to require the institution of martial law, 
and extending to all classes of civilians as well as to military 
persons.*^ By means of these tribunals, the President's powers 
to carry on the vigorous prosecution of a war are considerably 

46 Birkhimer, op. cit., 533-534; Winthrop, op. cit., 334. 
47Winthrop, op. cit., 335. 

48 Ere parte Vallandigham, 1 Wall., 243, 251-252 (1863). 
40 There are said to have been nearly 150 cases of women tried by mili- 
tary commissions during the Civil War. Davis, op. cit., 309, n. 



148 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [148 

extended ; he is through them enabled to deal effectively with that 
class of persons who, while not engaged in open acts of hostility, 
may in one way or another be interfering with the success of the 
military operations. 

Another power of the President, which should be noted as of 
some importance in this discussion, is his power to grant re- 
prieves and pardons. Tho finally vested in the President with- 
out limitation, except in cases of impeachment,^" the debates 
over the adoption of the Constitution reveal considerable fear of 
the wartime use of this power, that is, its use especially in cases 
of treason. Luther Martin expressed this fear when he said to 
the Maryland legislature : ' ' The power given to these persons 
[i. e., the President and Vice-President] over the Army and Navy 
is in truth formidable, but the power of Pardon is still more 
dangerous, as in all acts of Treason, the very offence on which 
the prosecution would possibly arise, would most likely be in fa- 
vor of the President's own power." ^^ The New York ratifying 
convention of 1788 also showed its fear of this Executive power 
by proposing the following amendment: "That the executive 
shall not grant pardons for treason, unless with the consent of 
the Congress ; but may, at his discretion, grant reprieves to per- 
sons convicted of treason until their cases can be laid before the 
Congress." ^^ 

The reason for vesting this power in the President was, how- 
ever, well stated by Hamilton when he wrote: "But the prin- 
cipal argument for reposing the power of pardoning in this case 
[i. e., in case of treason] in the chief magistrate is this : in sea- 
sons of insurrection or rebellion there are often critical moments 
when a well-timed offer of pardon to the insurgents or rebels may 
restore the tranquillity of the commonwealth, and which, if suf- 
fered to pass unimproved, it may never be possible afterward to 
recall. The dilatory process of convening the legislature, or one 
of its branches, for the purpose of obtaining its sanction to the 
measure would frequently be the occasion of letting slip the 
golden opportunity. " ^^ 

50 Constitution, Art. II, Sec. 2, CI. 1. 
BiFarrand's Eecords, III, 158; see also ihid., 218. 

52 Elliot's Debates, I, 330. 

53 T/ie Federalist, No. 73 (74) (Goldwin Smith ed., p. 411). But Hamil- 
ton's own draft of a constitution contained this clause: "He shall have 



149] POWERS OF MILITARY JURISDICTION 149 

Tho Congress has on occasion attempted to assert some author- 
ity and to exercise some control with respect to the granting of 
pardons, particularly in cases of rebellion and treason,^* the 
courts have uniformly held that the power of the President is 
complete and exclusive, and can in no way be restricted or lim- 
ited in its effects by Congress.^^ A pardon may thus be granted 
by the President before or after conviction, absolutely or upon 
conditions, and the ground for its exercise is wholly within the 
discretion of the President."^® 

Pardon may also be granted, in the form of a proclamation of 
amnesty, to a whole class of offenders, without any special con- 
gressional authority." President Washington in this way par- 
doned the participants in the Whiskey Rebellion of 1794 f^ Presi- 
dent Adams the Pennsylvania insurgents of 1799;^^ President 

power to pardon all offences, except treason, for which he may grant re- 
prieves, until the opinion of the Senate and Assembly can be had; and, 
with their concurrence, may pardon the same. ' ' Elliot 's Debates, V, 587. 

54 See Acts of July 17, 1862 and July 12, 1870. 12 Stat, at L., 589, 592 
(Sec. 13) ; 16 iUd., 230, 235. 

55 Ex parte Garland, 4 Wall., 333, 380 (1866); United States v. Klein, 
13 Wall., 128, 139-140 (1871). See also Taft, Our Chief Magistrate and His 
Powers, 119-120; Baseom, Growth of Nationality, 120-122; Glenn, The 
Army and the Law, 111. 

56 A striking instance of pardon before conviction is the case of Maj. 
Gen. Gaines in 1846. Altho found guilty by a Court of Enquiry of 
having violated orders and acted illegally in calling out large bodies of 
militia and volunteers without authority, and by these acts having greatly 
embarrassed the government and cost the treasury "many hundreds of 
thousands of dollars," as the President himself said, nevertheless Presi- 
dent Polk refused to convene a court-martial but ordered all further prose- 
cution stopped. Diary of James K. Folic, I, 450, 480; II, 82-83. The 
President has also frequently used his power of pardoning before con- 
viction as a means of securing the return to duty of deserters from the 
military service. See, for example, General Orders Nos. 43 and 102, July 3, 
1866, and Oct. 10, 1873, issued by the direction of the President, cited in 
20 Op. Atty. Gen., 345; also executive proclamations in Richardson, op. cit., 
VI, 163, 164, 233, 278. For instances of the exercise of the pardoning 
power after conviction for treason, see McKinney, ' ' Treason under the 
Constitution of the United States," Illinois Law Bev., XII, 381-402 (Jan., 
3918), 

57 20 Op. Atty. Gen., 330. 

58 Proclamation of July 10, 1795. Richardson, op. cit., I, 181. 

59 Proclamation of May 21, 1800. Ibid., 303. 



150 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [150 

Madison the so-called Barataria pirates who operated during the 
War of 1812.''° President Lincoln also used this means of offer- 
ing conditional pardon to the rebels in the Civil War;®^ while 
President Johnson issued four separate proclamations of amnesty 
and pardon, at first excluding a large number of classes, and 
finally granting a full and general pardon to all participants in 
the Eebellion.®^ 

The chief significance of the power of pardon lies not only in 
this that it permits the President to offer clemency at his dis- 
cretion and to correct acts of injustice done under the stress of 
war,''^ but that it also enables him practically to neutralize the 
effect of statutes passed by Congress for a very definite pur- 
pose. Thus the Confiscation Acts of the Civil War ^* provided 
for the confiscation of all property used in aid of the rebellion, 
and of the property of certain classes in the Confederacy, wheth- 
er used in aid of the rebellion or not; while the Captured and 
Abandoned Property Act "^ turned over to the Treasury the pro- 
ceeds of all property picked up by Federal troops, leaving it to 
the owner to assert his claim in the Court of Claims on establish- 
ing his loyalty. For all these Acts, the Supreme Court held 
that a pardon operated to purge the claimant of disloyalty,^'' and 
hence by granting a general pardon the President was enabled 
to overrule completely the intent of Congress in passing these 
acts. 

Likewise with respect to such acts as the Espionage Act, pass- 
so Proclamation of Feb. 6, 1815. Eiehardson, op. cit., I, 558-560. 

61 Proclamations of Dec. 8, 1863 and Mar. 26, 1864. lUd., VI, 213-215, 
218. 

62 Proclamations of May 29, 1865; Sept. 7, 1867; July 4, 1868; and Dec. 
25, 1868. Ihid., VI, 310-312, 547-549, 655-656, 708. 

63 The Clemency Board appointed by the President to review court- 
martial cases adjudged during the recent war passed upon 2,857 cases 
from Feb. 25 to Apr. 25, 1919, and made a partial or complete remission 
of the sentences in 91 per cent of the cases considered. N. Y. Times Cur- 
rent Hist. Mag., X, 62 (July, 1919). President Lincoln's generous use 
of the pardon toward soldiers convicted of purely military offenses is 
well known. 

64 Acts of Aug. 6, 1861 and July 17, 1862. 12 Stat, at L., 319, 589. 

65 Act of Mar. 12, 1863. lUd., 820. 

66 United States v. Padelford, 9 Wall., 531, 542-543 (1869) ; United 
States V. Klein, 13 Wall., 128, 142 (1871). 



151] POWERS OF MILITARY JURISDICTION 151 

ed during the recent war with Germany, the President might, by 
a general pardon, overcome the purpose of Congress and restore 
those convicted of disloyalty and obstruction to their full rights 
as loyal citizens.®^ 



67 Shortly after the signing of the armistice, a strong movement de- 
veloped for the pardon of the so-called ' ' political prisoners ' ' convicted dur- 
ing the war. See, for example, a pamphlet, "Political Prisoners in Fed- 
eral Military Prisons," published by the National Civil Liberties Bureau, 
Nov. 21, 1918. See also The Dial, Jan. 11, 1919, and N. Y. Times, Dec. 
26, 1919. In March, 1920, Senator France (Md.) introduced a joint reso- 
lution asking that these political prisoners be pardoned. United States Bul- 
letin, Mar. 15, 1920. President Wilson did not issue any such general 
pardon. 



CHAPTER IX 

POWERS OF MILITARY GOVERNMENT 

Military government, or the government of occupied territory 
is defined as "that dominion exercised in war by a belligerent 
power over territory invaded and occupied by him and over the 
inhabitants thereof, ' ' ^ Military government in this sense must 
be carefully distinguished from martial law, in that the former 
is exercised only in time of war over the inhabitants of an occu- 
pied enemy country; while the latter may be instituted during 
any emergency, whether in time of war or peace, over the citizens 
at home. Martial law also requires a formal proclamation or 
declaration before it can be put into effect, while military gov- 
ernment exists ' ' simply as a consequence of conquest and occupa- 
tion. "^ 

The authority to institute and exercise military government 
arises from the right and obligation of the invading belligerent, 
under the laws of war, to protect his own forces and to guaran- 
tee order and security to the inhabitants of the conquered terri- 
tory.^ In the United States, that right and that obligation are 
vested in the President, as Commander-in-Chief, and are exer- 
cised under his direction and by his subordinates.* ''The effle- 

iWinthroT^), Ahridgmeiit of Military Law (2nd ed.), 322; Cf. Birk- 
himer, Military Governmient and Martial Law (2nd ed.), 45; Pomeroy, 
Constitutional Law in the United States (Bennett ed.), 595; Magoon's 
Beports, 12. 

2Winthrop, op. cit.^ 322-323. 

3 See Kegulations of Hague Convention respecting the Laws and 
Customs of War on Land, Art. 43, in Scott, Texts of the Peace Con- 
ferences at The Hague, 225. 

4 ' ' Acts of military commanders in conducting the operations of war, 
and especially in territory in military occupation are by the presumed au- 
thority of the commander-in-chief." Finley & Sanderson, The American 
Executive and Executive Methods, 192; cf. Mechanics BanTc v. Union 
Banlc, 22 Wall., 276, 297 (1874). 

152 



153] POWERS OF MILITARY GOVERNMENT 153 

ient prosecution of hostilities in war being devolved upon the 
President as Commander-in-Chief," says Winthrop, "it will be- 
come his right and duty (unless Congress otherwise provide) to 
exercise military government over such portion of the country of 
the enemy as may pass into the possession of his army by the 
right of conquest. ' ' ^ 

Chief-Justice Chase has likewise defined military government 
as military jurisdiction "to be exercised in time of foreign war 
without the boundaries of the United States, or in time of rebel- 
lion and civil war within states and districts occupied by rebels 
treated as belligerents; ... by the military commander 
under the direction of the President, with the express or im- 
plied sanction of Congress. ' ' ^ 

The powers of the President with respect to military govern- 
ment are practically absolute, being limited, neither by the Con- 
stitution and laws of the United States nor by the laws of the 
country under occupation, but, solely by the laws and usages of 
war. " It is not the civil law of the invaded country ; it is not the 
civil law of the conquering country ; it is military law — the law 
of war" — that governs a military occupant.'^ As Commander- 
in-Chief, it is within the jurisdiction of the President to deter- 
mine when the conquest of an enemy territory has been suffi- 
ciently completed to warrant or require the institution of a mili- 
tary government ; ® and, in the absence of congressional action, he 

5 Abridgment of Military Law, 324. 

eEx parte Milligan, 4 Wall., 2, 141-142 (1866). 

TJDow V. Jolinson, 100 U. S., 158, 170 (1879). "In such cases the laws 
of war take the place of the Constitution and laws of the United States 
as applied in time of peace." New Orleans v. The Steamship Company, 
20 Wall., 387, 394 (1874), "The right of one belligerent to occupy and 
govern the territory of the enemy while in its military possession, is 
one of the incidents of war, and flows directly from the right to conquer. 
We, therefore, do not look to the Constitution or political institutions 
of the conqueror for authority to establish a government for the terri- 
tory of the enemy in his possession, during its military occupation, nor 
for the rules by which the powers of such government are regulated and 
limited. Such authority and such rules are derived directly from the 
laws of war .- . ." Booley v. United States, 182 U. S., 222, 230-231 
(1901). 

sHornsly v. United States, 10 Wall., 224, 239 (1869). Occasional- 
ly attempts have been made to set up a military government over territory 
not actually under occupation and control. For example, Andrew John- 



154 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [154 

may likewise determine the duration of such military occupation 
and government.^ 

The President may also determine the character of the govern- 
ment to be established over occupied territory; that is, he may, 
under the laws of war, set up such political institutions and cre- 
ate a government with such powers as he thinks best suited for 
carrying out the purposes of the military occupation. Thus, 
during the war with Mexico, President Polk, altho he had 
instructed General Kearney to establish temporary civil govern- 
ments in the regions conquered by him,^° disapproved and re- 
pudiated his action in organizing a government for New Mexico 
which gave to that region the status of a permanent territory of 
the United States and which recognized the inhabitants as Uni- 
ted States citizens." 

However, in spite of this expressed disapproval of the prin- 
ciple upon which the military govei'nment had been organized in 
New Mexico, the President apparently made no change in the 
machinery or institutions set up there by General Kearney. More- 
over, he expressed no disapproval of the similar territorial gov- 
ernment organized in California by Commodores Sloat and 
Stockton;^- and certainly approved that established in March, 

son was appointed military governor of Tennessee in March, 1862, when 
a considerable portion of the state was still unconquered by the Union 
forces; and General Banks, remarking that "the city of New Orleans is 
in reality the State of Louisiana," ordered an election held in January, 
1864, for governor and other officers for the entire state. See A. H. Car- 
penter, "Military Government of Southern Territory, 1861-1865," in 
Beport, Am. Hist. Assn. 1900, I, 465-498, esp. 477, 478. President Mc- 
Kinley took for granted that the capture of Manila and the surrender 
of the Spanish forces there "practically effected the conquest of the 
Philippine Islands," and therefore, on Dec. 21, 1898, ordered the ex- 
tension of the military government theretofore maintained only in the 
city of Manila to the entire archipelago. Eichardson, Messages and Papers 
of the Presidents, X, 219. 

^Neely v. Eenkel, 180 U. S., 109, 124 (1901); Birkhimer, op. cit., 
21, 368. 

10 Thomas, History of Military Government in Newly Acquired Terri- 
tory of the United States, 101-102. 

11 Message to Congress, Dec. 22, 1846. Eichardson, op. cit., IV, 507; 
see also Diary of James K. Folk, II, 282. For description of the govern- 
ment set up by Gen. Kearney in New Mexico, see Thomas, op. cit., 
103-105. 

12 Thomas, op. cit., 160-162, 165, 181. However, the President was not 



155] POWERS OF MILITARY GOVERNMENT 155 

1847, by General Kearney, which, altho not a territorial govern- 
ment in name, in fact practically annexed California to the Uni- 
ted States as permanent territory, the inhabitants having been 
absolved from all allegiance to Mexico and considered as citizens 
of the United States.^^ 

During the Civil War, military governments were also estab- 
lished by the President in the occupied portions of the South, 
and his right to do so was upheld by the Supreme Court on the 
ground that the conflict, "though not between independent na- 
tions, but between different portions of the same nation, was ac- 
companied by the general incidents of an international war." ^* 
In fact, one writer has well described the Civil War as "a broad- 
ening drama of military occupation, successive governments be- 
ing established as the Confederacy gave way. ' ' ^^ 

The governments established were of a peculiar character, how- 
ever, in that they were not strictly military governments in the 
sense in which that term is used in international law, instituted 
to afford protection for the occupying forces and a temporary au- 
thority for the enemy inhabitants. They involved the creation 
of an office not previously known in American constitutional law 
— that of military governor f^ and they were instituted not for 
the ordinary purposes of a military occupation, but with the 
avowed purpose "to re-establish the authority of the Federal 

aware of the action taken in California when he sent his message to 
Congress; and his disapproval of the Stockton government may be as- 
sumed from his ignoring that regime in his later instructions to Gen. 
Kearney to take charge in California. 

13 Thomas, op. cit., 193-195. In October, 1847, the President expressed 
himself as favoring an open avowal that New Mexico and California should 
be retained by the United States, and that permanent territorial govern- 
ments should be established. Diary of James K. Polk, III, 190. 

liDow V. Jolmson, 100 U. S., 158, 164 (1879); cf. Coleman v. Ten- 
nessee, 97 U. S., 509, 517 (1878). 

15 Glenn, The Army and the Law, 97. 

16 The "military governors" appointed during the Civil War were 
commissioned as such, and were distinct from the commanding officer of 
the occupying forces. They were generally selected from civil life, but for 
the occasion were given military rank, commonly that of Brigadier Gen- 
eral. Previous to this, no "military governor" had ever been appointed, 
the commanding officer of the occupying forces merely assuming the 
duties of governor by virtue of his rank as the superior officer in the 
territory concerned. 



156 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [156 

Government . . . and to provide the means of maintaining the 
peace and security to loyal inhabitants . . . until they shall 
be able to establish a civil government. ' ' ^^ With this end in 
view, the old state governmental machinery was gradually re- 
stored and placed in the hands of the loyal inhabitants of the oc- 
cupied districts, new institutions were created where thought 
necessary, and new state constitutions, designed to be permanent, 
were required to be framed and adopted — all of which was up- 
held by the Supreme Court as a legitimate exercise of the Presi- 
dent's power, under the laws of war, to institute military gov- 
ernments.^^ 

During the Spanish-American War, military governments 
were, by order of President McKinley, established in the Philip- 
pines, in Porto Rico, and in Cuba, at first of the general 
character contemplated by the laws and usages of military occu- 
pation; that is, merely temporary governments set up by the 
military commander for the protection of the occupying forces 
and the security of the inhabitants.^^ In Porto Rico, however, 
some changes were made in the political and judicial system that 
were not required by military necessity, and the government is 
said to have been administered, even before the treaty of peace 
was signed, "as though the island were a permanent possession 
of the United States ■/' ^^ while the later anomalous government 
for the Philippines was presaged by the sending of a commission 
to the islands, appointed after the signing but before the final 
ratification of the treaty, with instructions to ' ' study attentively 
the existing social and political state of the various populations, 
particularly as regards the forms of local government, the ad- 
ministration of justice, the collection of customs and other taxes, 

17 Statement of Secretary of War Stanton, quoted by A. H. Carpen- 
ter, op. cit., 478. 

18 " So long as the war continued it cannot be denied that he might 
institute temporary governments within insurgent districts, occupied by 
the national forces, or take measures, in any state, for the restoration of 
State governments faithful to the Union, employing, however, in such ef- 
forts, only such means and such agents as were authorized by constitu- 
tional laws." Texas v. White, 7 Wall., 700, 730 (1868). 

19 See instructions of President McKinley to the Secretary of War, 
issued May 19, July 13, and Dec. 21, 1898. Richardson, op. dt., X, 208- 
211, 214-216, 219-221. 

20 Thomas, op. cit., 307. 



157] POWERS OF MILITARY GOVERNMENT 157 

the means of transportation, and the need of public improve- 
ments. " ^^ 

Having therefore the power, as Commander-in-Chief, to insti- 
tute such a temporary government for occupied territory as he 
may see fit, the President may also perform all the necessary 
functions of that government, whether executive, legislative, or 
judicial.^2 He has, in the first place, complete control over the 
appointment and removal of officers for that government. He 
may continue in office such of the local officials as he sees fit, or 
he may remove them at his discretion and appoint a new set of 
officials, who, upon the sole authority of the President, supersede 
the existing officials and administer the government under his 
direction. 

Thus, President Polk, in his instructions to General Kearney 
with regard to the governments to be established by him in New 
Mexico and California, urged him "to continue in their employ- 
ment all such of the existing officers as are known to be friendly 
to the United States, and will take the oath of allegiance to 
them ; " ^^ and President McKinley similarly instructed the Sec- 
retary of War in 1898, that judges and other officials of justice 
in the occupied territories should continue in office, if they ac- 
cepted the authority of the United States and the supervision of 
the American commander. He reminded the Secretary, how- 
ever, that under the laws of war, "if the course of the people 
should render such measures indispensable to the maintenance of 
law and order," the commander of the occupying forces had the 
power "to replace or expel the native officials in part or alto- 
gether, to substitute new courts of his own constitution for those 
that now exist, or to create such new or supplementary tribunals 
as may be necessary. "2* 

In the military governments established during the Civil War, 
on the other hand, the power of removal was exercised exten- 

21 The commission consisted of Jacob G. Schurman, Admiral Dewey, 
Maj. Gen, Otis, Charles Denby, and Dean C, Worcester. See the Presi- 
dent's instructions to the Secretary of State, Jan. 20, 1899. Richardson, 
op. di., X, 222-223. 

^^ Cross V. Harrison, 16 How., 164, 190 (1853); Leitensdorfer v. Webb, 
20 How., 176, 177-178 (1857) ; The Grapeshot, 9 Wall., 129, 133 (1869) ; 
Root, Military and Colonial Policy of the United States, 252. 

23 Instructions of June 3, 1846. Thomas, op. cit., 102. 

24 Richardson, op. cit., X, 209-210, 215, 220. 



158 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [158 

sively, being applied not only to public officials of low and high 
degree, such as state officers, judges, and mayors; but also to 
officers of semi-public and even private concerns, such as library 
officials, officers and professors at state universities, and officers 
of chambers of commerce. "Where they were not removed, the 
officials were "little more than figureheads," strictly subordin- 
ate to the military commander, and holding their positions only 
by his permission.^^ 

The officials appointed may be either civilians or military per- 
sons, within the discretion of the appointing authority. Thus, 
the principal officials appointed by General Kearney in New 
Mexico were all civilians, including a governor, secretary, and 
three members of the supreme court, altho the duties of governor 
were later performed by military officers f^ while in California, 
under similar conditions, the principal officials were military men 
under both the Stockton and Kearney regimes.^'^ The "mili- 
tary governors" appointed by President Lincoln were all civ- 
ilians, given military rank for the occasion,^^ and there seemed 
to be a conscious effort to fill most of the subordinate offices also 
with civilians. However, many of the commanding officers ex- 
ercised the functions of a military governor, by virtue of their 
rank, in the territory occupied by the forces under their com- 

. 25 A. H. Carpenter, op. cit., 481. 

26 Charles Bent, appointed governor by Gen. Kearney, was killed in 
an insurrection, Jan. 19, 1847. Secretary Vigil, who thereupon became 
acting governor, was appointed governor Dec. 17, 1847, by the military 
commander. Col. Price, and served till Dec. 11, 1848, when the duties of 
"civil and military governor" were assumed by Col. J. M. Washington, 
by virtue of his rank as commanding officer. He was in turn succeed- 
ed Oct. 23, 1849, by Col. John Munroe, who served till the end of the 
military regime. Thomas, op. cit., 115-116, 128. 

27 Col. John C. Fremont acted as governor for a short time under ap- 
pointment from Stockton; while under Kearney the principal of&ees were 
filled as follows: governor, Col. E. B. Mason; secretary of state, Lt. H. 
W. Halleck (later famous as a Civil War general and as a writer on in- 
ternational law) ; collector of customs, Capt. J. L. Folsom. Col. Mason 
was succeeded by Brig. Gen. Eiley, who served till the organization of 
the state government. Thomas, op. cit., 181; Winthrop, op. cit., 324-325. 

28 Andrew Johnson was commissioned military governor of Tennes- 
see, with rank of Brigadier General; likewise John S. Phelps of Arkan- 
sas; Edward Stanly of North Carolina; and George F. Shepley of 
Louisiana. 



159] POWERS OF MILITARY GOVERNMENT 159 

mand. During the period of the war with Spain, President Me- 
Kinley placed the military governments established by him in 
charge of the commanding officers and their military subordin- 
ates, gradually supplanting them with civilians after the United 
States had acquired permanent possession.^^ 

These powers of appointment and removal maj^ be exercised, as 
has been noted, either by the President directly, or through the 
commanding officer or other subordinate with due authority in 
the occupied district. Usually the commanding officer assumes 
the duties of a military governor by virtue of his rank, without 
any special appointment as such. In other cases, as in the mili- 
tary governments established in the South, a military governor 
was appointed by the President for each particular occupied dis- 
trict, distinct from the commanding officer in that region ; while 
again, as in New Mexico and California, the functions of com- 
manding officer and military governor have been performed, 
sometimes by different persons, sometimes by the same person. 
As a general rule, where the government is presumed to be 
strictly military in character the President has left the appoint- 
ment of the officials in active charge to the commanding officer, 
who may then select either civilians or military officers. Thus 
when Secretary Vigil became acting governor in New Mexico 
after the death of Governor Bent, and besought the Washington 
authorities to appoint a successor, Secretary of War Marcy re- 
plied that the government being purely military, the appoint- 
ment of a governor would be left to the commanding officer 
(Colonel Price). 2° 

29 Maj. Gen. Wesley L. Menitt set up a military government in the 
city of Manila immediately upon its capture and occupation on Aug. 13, 

1898, which military government was later extended to the whole archi- 
pelago by his successor, Maj. Gen. E. S. Otis, acting under the direct 
order of the President. Gen. Otis was succeeded on May 5, 1900, by 
Maj. Gen. Arthur MacArthiir, who was in turn succeeded on July 4, 1901, 
by Maj. Gen. A. E. Chaffee. Porto Eico was occupied by forces under 
Gen. Nelson A. Miles, July 25, 1898, but a military government was first 
formally established Oct. 18, by Maj. Gen. John E. Brooke. He was 
succeeded on Dec. 9, 1898, by Maj. Gen. G. V. Henry, and on May 9, 

1899, by Brig. Gen. G. W. Davis. In Cuba, a formal military govern- 
ment for the whole island does not appear to have been set up till Dec. 
13, 1898, when a Division of Cuba was created, with Maj. Gen. Brooke 
as commander and military governor. He was succeeded in Dec, 1899, 
by Maj. Gen. Leonard Wood. 

30 Thomas, op. cit., 123, 



160 WAR POWERS OF THE EX:§:CUTIVE IN UNITED STATES [160 

While the President's power with regard to the government of 
occupied territory is therefore justly said to be "necessarily 
despotic," it has been held that this applied only to his execu- 
tive or administrative power, and not to his power to legislate 
for that territory. ' ' His power to administer would be absolute, ' ' 
says the Supreme Court, ''but his power to legislate would not 
be without certain restrictions — in other words, they would not 
extend beyond the necessities of the case. ' ' ^^ However, it seems 
to be within the power of the President, as Commander-in-Chief, 
to judge of the "necessities of the case," hence the restriction 
amounts in practise to very little. 

The President has the power, directly or through his subor- 
dinates, to issue orders for the government of a conquered terri- 
tory, at least until Congress has acted, and these orders have the 
force of law.^^ Altho definite affirmative action on the part of 
the President or the military commander is required in order 
to change the local municipal law of the conquered territory, he 
may, if he thinks necessity demands such a step, abolish entirely 
the laws of that territory and substitute laws and regulations of 
his own making, or he may supplement the local municipal law 
with such regulations as he may deem necessary and proper.^^ 

President Polk in 1846 thus defined the principles to which the 
laws adopted for a conquered territory should conform, when he 
declared to Congress that "such organized regulations as have 
been established in any of the conquered territories for the se- 
curity of our conquest, for the preservation of order, for the pro- 
tection of the rights of the inhabitants, and for depriving the 
enemy of the advantages of these territories while the military 
possession of them by the forces of the United States continues, 

s-LDooley v. United States, 182 U. S., 222, 234 (1901); cf. Moore's 
Digest, 271; Baymond v. Thomas, 91 U. S., 712, 716 (1875). 

32 Cross V. Harrison, 16 How., 164, 190 (1853). 

33 ' ' Until he acts, it is presumed that he intends to leave it of full 
effect." Glenn, The Army and the Law, 101, n. ; Coleman v. Tennessee, 
97 U. S., 509, 517 (1878). President McKinley, in 1898, ordered that 
the rule of international law which required that the municipal law 
of the conquered territory should be considered as remaining in force, so 
far as compatible with the new order and until suspended or superseded 
by the occupying belligere'ut, be adhered to as far as possible. Richardson, 
op. cit., X, 209. Cf. Winthrop, op. cit., 323; Davis, Treatise on the Mili- 
tary Law of the United States, 300-301. 



161] POWERS OF MILITARY GOVERNMENT 161 

will be recognized and approved. ' ' ^* Accordingly, altho at that 
time he disapproved the attempt to give New Mexico the status 
of a permanent territory of the United States, as has been noted, 
the President apparently accepted and approved the action of 
General Kearney in adopting an organic law for that region, 
copied from the organic law of Missouri Territory,^^ and in put- 
ting into effect numerous other laws, compiled from neighboring 
state and territorial laws and from the laws of Mexico.^^ In 
California, on the other hand, the legislative council established 
under the Stockton government was ignored and omitted in the 
government set up by General Kearney under instructions from 
the President,^'^ and the orders of the military governor there- 
fore continued there to be the only source of law. 

In the occupied districts of the South, elections were conduct- 
ed under regulations prescribed by the military governor, con- 
ventions were held under his supervision, and the constitutions 
and governments created thereby were inaugurated under his 
authority. For example. General Banks ordered aja election held 
in Louisiana in January, 1864, for governor and other officers, 
with the regulation that those entitled to the rights of United 
States citizens would be required to participate, "indifference" 
to be treated as a crime and "faction" as treason. Governor 
Shepley, in the same state, later ordered an election for dele- 
gates to a constitutional convention, for which he decreed the 
registration of all loyal citizens, determined the ratio of repre- 
sentation in the convention, and supervised the registration and 
election officers in their work. In Arkansas, elections held under 
the revised constitution were set aside under authority from 
President Lincoln, new elections were held, and new officers in- 
augurated ; while in Tennessee also, the confirmation and approv- 
al of the military governor was apparently necessary, not only 
for the holding of elections, but in order that persons duly chosen 
might act.^^ 

34 Message of Dec. 22, 1846. Richardson, op. cit., IV, 507. 

35 It was, for example, under the provisions of this ' ' organic law ' ' 
that Secretary Vigil became acting governor of New Mexico upon the 
death of Governor Bent in January, 1847. 

36 Thomas, op. cit., 103-105. 

37 Ibid., 181. 

38 A. H. Carpenter, op. cit., 478, 482. 



162 WAR POWERS OP THE EXECUTIVE IN UNITED STATES [162 

This military supervision and control of elections extended 
during the Civil War even to the occupied districts in the border 
states which were, strictly speaking, not subject to military gov- 
ernment and whose constitutional rights were pronounced as 
* ' theoretically equal to the rest of the Union. ' ' Thus, in various 
places in Kentucky orders and proclamations were issued by the 
military authorities, by which army officers were required to 
see that none but loyal persons voted or were candidates at the 
elections, or acted as election officers; in Missouri "voting con- 
trary to orders" was declared to be a military offense; and in 
Maryland provost-marshals were ordered to "assist" election 
judges in administering the oath of allegiance and in reporting 
those who failed to carry out the regulations. "In this way the 
military became the judge and interpreter of the civil author- 
ities and even of the laws themselves, ' ' ^^ 

The President may likewise exercise complete control over 
the municipalities within the occupied territory. He may, through 
the proper subordinates, "change or modify either the form or 
the constituents of the municipal establishments; may, in place 
of the system and regulations that formerly prevailed, substitute 
new and different ones. ' ' *° Thus, during the Civil War, this 
municipal control extended to the founding of courts, legislation 
concerning property, the establishment of bureaus in charge of 
various city activities, the enforcement of a system of licenses, 
the appointment and removal of officials, the creation of police 
forces, and the censorship of newspapers.^^ 

Numerous other powers with regard to the government of 
occupied territory that are legislative in character may also be 
exercised by the President. He may provide the finances neces- 
sary for the support of the occupying forces and the expenses of 
the administration of the territory by the levying of military 
contributions, the collection of the regular taxes, and the 
imposition of customs duties,*^ his judgment as to the propriety 

39 A. H. Carpenter, op. cit., 482-483. 

40 Attorney-General Griggs to the Secretary of War, July 10, 1898. 
22 Op. Atty. Gen., 527, 528. 

41 A. H. Carpenter, op. cit., 493-496; cf. Garner, Reconstruction in Miss- 
issippi, 38. 

42 Lawrence, Principles of International Law, 445; Richardson, op. cit., 
IV, 570-572, 672-678; Winthrop, op. cit., 326; Dooley v. United States, 



163] POWERS OF MILITARY GOVERNMENT 163 

of such measures being necessarily arbitrary and absolute.^^ He 
may likewise promulgate measures for the regulation of trade 
and intercourse with the occupied territory j** establish and main- 
tain telegraph and railroad lines, even tho their business con- 
flict with the vested rights of private companies ;*^ grant licenses 
and enter into contracts whose provisions are binding even after 
the termination of the military occupation;*^ and restrict the 
right of private ownership.*'^ 

The judicial powers of the President in occupied territory are 
also extensive. He has complete control over the establishment, 
jurisdiction, and functioning of the military courts, such as 
courts-martial, provost courts, and military commissions.*^ In 
addition, the President may exercise supervision over civil courts 
already in existence,*® or he may create such civil courts as he 
deems necessary, displacing or supplementing those already ex- 
isting. Thus, in New Mexico General Kearney established a com- 
plete judicial system, consisting of a superior or appellate court 
and district courts, and defined their jurisdiction.^" 

During the Civil "War, provost courts were established by the 
military commanders in New Orleans and elsewhere, with civil 
and criminal, as well as military jurisdiction, and supplanting 
in many cases the lower state courts and the local police courts. 
President Lincoln himself, by executive order of October 20, 

182 U. S., 222, 231-233 (1901). For view that the President does not 
have these powers, see Kent's Commentaries, 1, 292, quoted in Moore's 
Digest, VII, 270. 

43Z>ow V. Johnson, 100 U. S., 158, 165 (1879); Herrera v. United 
States, 222 U. S., 558, 571 (1912). During the Mexican War, President 
Polk at first gave Scott and Taylor discretionary authority to exact con- 
tributions, but neither having done so, he later made his orders "per- 
emptory and stringent" that such exactions should be made. Diary of 
James K. Polk, fil, 156, Gen. Scott is said to have collected contribu- 
tions of about $22,000 from 19 Mexican states. Winthrop, op. cit., 326. 

44Birkhimer, op. cit., 272; Fleming v. Page, 9 How., 603, 615 (1849); 
cf. A. H. Carpenter, op. cit., 489-493. 

45 23 Op. Atty. Gen., 425; Magoon's Beports, 391-407. 

^e New Orleans v. Steamship Company, 20 Wall., 387, 394-395 (1874); 
23 Op. Atty. Gen., 551, 559-563. 

47 Moore's Digest, VII, 264; For. Bel. 1901, App., 97. 

is Supra, eh. VIII. 

49 See A. H. Carpenter, op. cit., 484-485. 

60 Winthrop, op. cit., 325. 



164 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [164 

1862, created a provisional court for Louisiana, which has been 
described as "the Alpha and Omega of justice for Louisiana." 
In this order the President appointed the judge (Charles A. Pea- 
body), and gave the court jurisdiction over "all causes, civil and 
criminal, including cases in law, equity, revenue, and admiralty, 
and particularly all such powers and jurisdictions as belong to 
the district and circuit courts of the United States." He also 
prescribed the rules of procedure ; made the decisions of the 
court "final and conclusive," with appeals forbidden; and vest- 
ed in it the power to appoint the prosecuting attorney, marshal, 
and clerk. While the state laws in force were to be administered 
by this court ' * as far as possible, ' ' the orders of the military com- 
manders were recognized as of " paramount authority. ' ' ^^ 

All of these acts of the President were upheld by the Supreme 
Court in several decisions,^^ and his power, as Commander-in- 
Chief, to organize and practically to control the judiciary in 
territory under military occupation, was clearly affirmed,^^ with 
only the limitation that neither the President nor any military 
commander can establish a court in such occupied territory to 
adjudicate prize cases or to administer the law of nations.^* 

Since all the powers and functions of military government are 
therefore concentrated in the hands of the President, with scarce- 
ly any limitation, it would not seem to be an exaggeration to char- 
acterize such government as "an absolutism of the most com- 
plete sort. ' ' ^^ 



51 A. H. Carpenter, o-g. dt., 485-486. 

•52 Leitensdorfer v. Webb, 20 How., 176 (1857); The Gh-apeshot, 9 
Wall., 129 (1869) ; Burke v. Miltenberger, 19 WaU., 519 (1873) ; Meclmn- 
ics Bank v. Union Bank, 22 Wall., 276 (1874). 

53 "When enemies' territory is occupied, or territory to which the 
rules of law assign that name, though it be that of a State of the Union, 
the President can replace its courts by courts of his own, exercising both 
civil and criminal jurisdiction, and disposing of life, liberty, and prop- 
erty, not as instruments of the judicial authority of the United States, 
but as instruments of the executive authority. ' ' Baldwin, Modern Polit- 
ical Institutions, 103. 

^ijeoker v. Montgomery, 13 How., 498, 515 (1851). 

55 A. H. Carpenter, op. cit., 496 ; Willoughby, Constitutional Law, I, 390. 



III. Civil Powers in Time of War 



CHAPTER X 

CONTROL OF ADMINISTRATION 

It has been pointed out by a distinguished authority how the 
original American conception of executive power was to the effect 
that the President had been vested with military and political 
rather than administrative power; and further, how that con- 
ception has changed, so that now the President is generally rec- 
ognized, through powers conferred by statute and derived from 
the Constitution itself, as "not merely the political head of the 
United States national government but as well the head of its 
administrative system. ' ' ^ 

This position of the President naturally becomes especially im- 
portant in time of war, when the exigencies of the situation re- 
quire the creation of additional governmental agencies and a 
vast expansion in the general field of administration. Through 
his constitutional powers of appointment, removal, supervision, 
and direction, the scope of the President's administrative author- 
ity is at such a time automatically extended, if his specific powers 
are not actually increased. 

In addition, Congress at such a time is inclined to recognize 
the wisdom of Hamilton's arguments for a vigorous and unified 
Executive,^ and to entrust exceptional administrative control to 
the President. That is particularly true with regard to ad- 
ministrative agencies created to meet the special military needs 
of the country. Thus the actual administration of the Draft 
Acts of the Civil War ^ was given over to the President, altho 
hedged about with such an amount of . statutory detail as to 

1 Goodnow, Principles of the Admirmtraiive Law in the United States, 
73-82. 

2 See The Federalist, No. 69 (70), (Goldwin Smith ed., p. 386ff.)- 

3 Acts of Mar. 3, 1863, Feb. 24, 1864, and July 4, 1864. 12 Stat, at L., 
731 ; 13 iMd., 6, 390. 

167 



168 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [168 

leave him with little discretionary authority. The work 
of administering the provisions of the draft was carried out 
through a Provost Marshal General, and through enrollment 
boards, one for each district into which the United States was 
divided. Each such board was to be composed of the provost- 
marshal for the district, a licensed physician, and one other per- 
son, to be appointed by the President. Their duties, however, 
were definitely defined by statute, hence the President's author- 
ity was principally such as resulted from his control over the 
personnel of the administrative machinery and from his general 
powers of supervision. 

The Selective Service Act of the recent war * went much fur- 
ther in entrusting the President with large powers of adminis- 
tration. The Act provided for the registration of all male per- 
sons between the ages of 21 and 30 (later extended to include all 
between the ages of 18 and 45 ^ ) , but gave the President com- 
plete authority to designate the time and place for such registra- 
tion, and to prescribe the rules and regulations in accordance 
with which it should be held. Under this provision. President 
Wilson issued no less than thirteen separate proclamations, desig- 
nating the various times and places for the registration,^ He 
likewise issued detailed regulations for the execution of the reg- 
istration provisions of the act. 

These regulations created an administrative system, consisting 
of the Provost Marshal General as the chief administrative offi- 
cer ; the governor and adjutant general of each state as his prin- 
cipal assistants ; a board of registration for each county or cor- 
responding subdivision, consisting of three members named by 

4 Act of May 18, 1917. Public No, 12, 65 Cong., in Wigmore, Souroe- 
BooTc of Military Law and War-time Legislation, 460-468. 

5 Act of Aug. 31, 1918, Public No, 210, 65 Cong,, iUd., 471-474. 

6 Proclamations of May 18, June 27, June 30, July 2, 1917; May 20, 
June 11, June 17, June 18, Aug, 13, Aug, 31, Sept. 18, Oct, 10 (2), 
1918, v. S. Stats., 65 Cong,, 1 Sess., Procs., 20, 30, 35, 36; ibid., 2 
Sess., 137, 149, 152, 155, 190, 196, 207, 212, 216. So many proclamations 
were issued for the reason that different registration dates were designat- 
ed for the various parts of the territory of the United States. Thus June 
5, 1917, was named as the first registration day in continental United 
States (execept Alaska), July 5 in Porto Rico, July 2 — Sept. 2 in Alaska, 
and July 31 in Hawaii; similarly with respect to the days later named 
under the amendatory acts of 1918, 



169] CONTROL OF ADMINISTRATION 169 

the governor (or by the mayor in cities of over 30,000 popula- 
tion), none of whom were to be in any way connected with the 
military establishment ; and one or more registrars for each vot- 
ing precinct. These Presidential regulations further defined the 
jurisdiction and duties of these various officials in connection 
with the registration; prescribed the compensation of the regis- 
trars ; and outlined in detail the forms and methods under which 
the registration should take place. '^ 

The local administration of the conscription provisions of the 
Selective Service Act was carried out through local and district 
boards, appointed by the President; the former, one for each 
county or corresponding subdivision, consisting of three or more 
members, none of whom was to be connected with the military 
establishment ; ^ the latter, one or more for each federal judicial 
district, composed of such number of members, likewise civilians, 
as the President might determine. The duties of these boards 
were outlined in the act; but the President was authorized to 
prescribe the rules and regulations under which the boards should 
operate, to make rules and regulations governing their organiza- 
tion and procedure, and to make ' ' all other rules and regulations 
necessary to carry out the terms and provisions of this section. ' ' ^ 

Accordingly, President Wilson, on June 30, 1917, issued regu- 
lations, describing in detail the organization, duties, and proced- 
ure of the local and district boards ;^° and on November 8, 1917, 
further regulations, covering in detail the jurisdiction of the 
official boards and auxiliary organizations, the rules and prin- 
ciples governing the classification of the men, the process of selec- 
tion, the procedure of induction and mobilization, forms to be 
observed, and the like.^^ The boards were subject to the immed- 

7 See Begistration B&giJblations, issued as a separate pamphlet by the 
Government Printing Office, 1917. 

8 As a general rule, the registration boards were reconstituted as the 
local boards. 

9 Selective Service Act, Sec. 4, in Wigmore, op. cit., 463-465. 

10 Eides and Eegulations Prescribed by tlie President for Local and 
District Boards, issued by the Government Printing Office, 1917. 

11 Selective Service Begulations. A second edition of these, revised 
and enlarged, was issued Sept. 16, 1918, in which was .included, for ex- 
ample, the famous ' ' work or fight ' ' rules. It is worthy of note that the 
Selective Service Act itself covers only 8 pages;' while the Eegistration 
Eegul^tions constitute a pamphlet of 30 pages, the Rules and Regula- 



170 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [170 

iate supervision of the Provost Marshal General and, finally, of 
the President, who was empowered to ' ' affirm, modify or reverse ' ' 
any decisions made by them. It is thus clear that while the ad- 
ministrative machinery of conscription was provided for and 
barely outlined by statute, its creation, supervision, method of 
operation, and control were in the hands of the President. 

With regard to the field of general administration, no addi- 
tional powers of importance were given to the President in pre- 
vious wars, beyond his ordinary powers of supervision and direc- 
tion over the various executive departments and agencies. On 
the other hand, something was done during the Civil War to 
provide a congressional check on the President's administration 
of the war through the committee of Congress known as the Joint 
Committee on the Conduct of the War.^^ 

The nature and extent of the recent World War, however, call- 
ed for the creation of numerous new administrative agencies, 
and it is worthy of note that Congress, in providing for these, 
in almost every instance gave the President blanket authority to 
work out the administrative details — to create the necessary of- 
fices, to prescribe the character of their organization, and to de- 
termine upon the administrative methods to be used. Thus, the 
Espionage Act, altho providing for the control of exports from 
the United States, created no administrative agency to exercise 
such control, but merely specified that the export trade be car- 
ried on "under such regulations and orders, and subject to such 
limitations and exceptions as the President shall prescribe. ' ' ^^ 

Likewise, the Food and Fuel Control Act set up no admin- 
istrative machinery, but authorized the President ''to make such 

tions for Local and District Boards one of 84 pages, and the two editions 
of the Selective Service Regnlations booklets of 254 and 432 pages, re- 
spectively. 

12 Hosmer, The Appeal to Arms, 80. See also W. W. Pierson, ' ' The 
Committee on the Conduct of the Civil War," in Am. Hist, Bev., XXIII, 
550-576 (Apr., 1918). During the recent war, an attempt was made to 
set up a similar committee. The Senate added a provision to the Food 
and Fuel Control bill, establishing a joint committee on war expenditures 
to be composed of 5 Senators and 5 Representatives, ''to safeguard the 
expenditure of the appropriations bearing upon the war as made by Con- 
gress. " The vigorous protest of President Wilson against the embarrass- 
ment of such a committee forced its abandonment in conference. Pol. Sci, 
Quar., XXXII, Supp., 37, 38. 

13 Act of June 15, 1917 (Title VII, Sec. 1). Wigmore, op. cit., 493. 



171] CONTROL OF ADMINISTRATION 171 

regulations and to issue such orders as are essential effectively 
to carry out the provisions of this Act," and further, "to create 
and use any agency or agencies, . ." for the same purpose.^* 
The Trading with the Enemy Act provided for the regulation 
and control of trading with an enemy or ally of enemy and of the 
import trade, and for the censorship of foreign communications 
and foreign-language publications, but empowered the President 
to "exercise any power or authority conferred by this Act 
through such officer or officers as he shall direct ;"^^ while the 
Kailway Control Act provided, "That the President may execute 
any of the powers herein and heretofore granted him with rela- 
tion to Federal control through such agencies as he may deter- 
mine . . ."^^ 

By virtue of these provisions, President Wilson vested the 
executive administration of his instructions and proclamations 
concerning the export trade in the Secretary of Commerce, and 
established an Exports Council, composed of the Secretaries of 
State, Agriculture, and Commerce, and the Food Administra- 
tor," "to direct exports in such a way that they will go first and 
by preference where they are most needed and most immediately 
needed, and temporarily to withhold them, if necessary, where 
they can best be spared." ^^ As the administrative agencies for 
carrying out the purposes of food and fuel control, the President 
created the Food and the Fuel Administrations and the United 
States Grain Corporation ;^^ to administer the provisions of the 
Trading with the Enemy Act concerning censorship and the reg- 
ulation of imports, he set up the Censorship Board and the War 
Trade Board f"" while for the administration of the railroads, he 

14 Act of Aug. 10, 1917 (Sees. 1, 2). Wigmore, op. cit., 504. 

15 Act of Oct. 6, 1917 (See, 5a). lUd., 548. 

16 Act of Mar. 21, 1918 (Sec. 8). lUd., 580. 

17 Executive order of June 22, 1917. Official Bulletim,, June 26, 1917. 

18 Statement of President Wilson. Hid. By executive order of Aug. 
21, 1917, the Exports Council was enlarged by adding the Chairman of 
the Shipping Board, and continued as an advisory body; but superseded 
in its control of exports by the Exports Administrative Board, com- 
posed of representatives of the Secretaries of State, Agriculture, and 
Commerce, the Food Administrator, and the Shipping Board. Willoughby, 

Government Organization in War Time and After, 128; War Cyclopedia 

(1st ed.), 90. 

-^9 Infra, 204-208. 
20 Infra, 201, 210, 



172 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [172 

established the Railroad Administration, with Secretary of the 
Treasury McAdoo as Director General of Railroads.^^ 

Of all the important administrative agencies established dur- 
ing the recent war to carry on som^ phase of war activity, very 
few were expressly created by statute,^^ Congress thus appar- 
ently recognizing the importance of entrusting the details of war 
administration to the President. On the other hand, several war 
agencies, such as the Committee on Public Information and the 
War Industries Board, were created by the President without 
authority of statute, but by virtue of his powers as Chief Execu- 
tive and Commander-in-Chief.^^ 

The establishment of all these new administrative agencies for 
the carrying on of particular war activities, as well as the tre- 
mendous expansion in functions and personnel of the depart- 
ments and agencies already in existence, soon raised the problem 
of how to avoid duplication and waste and provide for the proper 
coordination of effort. It finally came to a point where, in the 
words of Senator Wadsworth (New York), '*It must be appar- 
ent to every sensible man that it is utterly impossible to get any 
teamwork out of this conglomeration of ambitious and scattered 
agencies, official and unofficial, unless we create some agency 
that shall guide and control them all in those matters in which 
team work is essential for the accomplishment of great results. ' ' ^^ 

This general feeling culminated in a proposal by Senator 
Chamberlain (Oregon), approved by the Senate Committee on 
Military Affairs, for a war cabinet, to be composed of ''three 
distinguished citizens of demonstrated ability," who were to be 

21 Infra, 215-216. 

22 The Alien Property Custodian was thus created by law. See Trad- 
ing with the Enemy Act (Sec. 6). Wigmore, op. cit., 548-549. See infra, 
212-213. Other administrative agencies of particular importance during 
the war, such as the Council of National Defense, the War Eisk Insur- 
ance Bureau, and the Shipping Board, were expressly created by statute, 
but before the United States entered the war and not anticipating that 
event. For the account of the work of the first two of these, see Wil- 
loughby, Government Organization in War Time and After, 9-21, 339-351; 
for that of the Shipping Board in relation to this study, infra, 217. 

23 Infra, 197-199, 211-212. 

24 Speech in U. S. Senate, Feb. 5, 1918. Cong. Record, 65 Cong., 2 
Sess., 1809. See also charts, included in the address, showing the or- 
ganization and proposed reorganization of the war-making machinery. 
lUd.. 1808-1810. 



173] CONTROL OF ADMINISTRATION 173 

appointed by the President with the consent of the Senate, and 
through whom the President was to exercise ' ' such of the powers 
conferred upon him by the Constitution and the laws of the 
United States, as are hereinafter mentioned and described." 
This war cabinet was to have complete jurisdiction and authority 
to initiate plans and policies for the prosecution of the war ; to 
direct and procure the execution of these plans and policies; 
and "to supervise, coordinate, direct, and control the functions 
and agencies of the Government, in so far as, in the judgment of 
the war cabinet, it may be necessary or advisable so to do for the 
effectual conduct and vigorous prosecution of the existing war. ' ' 
The war cabinet was further to be authorized to make the rules 
and regulations governing its own procedure; to require infor- 
mation from and utilize the services of any or all executive de- 
partments, agencies, and officials of the United States and of 
the several states ; and to make all the orders and decisions neces- 
sary to carry out these provisions. Besides the right to name its 
members, the President was to be given over this war cabinet, 
only a very limited power of review. ^^ 

The bill thus proposed to confer powers under which this new 
war cabinet, as one Senator said, "could take absolute charge of 
the conduct of the war. The President would not have the au- 
thority to initiate or formulate any plans or policies for its prose- 
cution. His power as Commander-in-Chief would be destroyed. 
He would be subject to the orders of the War Cabinet. ' ' ^^ Presi- 
dent Wilson therefore vigorously opposed this proposal, saying 
that it "would involve long additional delays and turn our ex- 
perience into mere lost motion, ' ' ^^ and instead he secured the 
introduction, and finally the passage, of a bill containing his 
ideas for meeting the situation.^® 

25 The war cabinet bill was introduced by Senator Chamberlain, Jan. 
21, 1918. See text of bill in Cong. Record, 65 Cong., 2 Sess., 1077-1078. 

2e Senator Shields, in U. S. Senate, Apr. 22, 1918. Cong. Eecord, 65 
Cong., 2 Sess., 5836. 

27 Statement of Jan. 21, 1918, quoted in Am. Fol. Sei. Rev., XII, 377 
(Aug. 1918). 

28 The administration bill was introduced by Senator Overman, Feb. 
6, 1918, and became law May 20, 1918. Senator Overman stated very 
frankly: "The bill was advocated by the President and sent to me by 
the President, and I have no hesitation in saying so." Cong. Record, 65 
Cong., 2 Sess. (Apr. 3, 1918), 4883. The fight between the advocates of 



174 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [174 

This so-called Overman Act authorized the President * ' for the 
national security and defense, for the successful prosecution of 
the war, for the better utilization of resources and industries, and 
for the more effective administration by the President of his pow- 
ers as Commander-in-Chief of the land and naval forces," to 
make such redistribution of functions among the executive 
agencies as he might deem necessary; to utilize, coordinate, or 
consolidate any existing executive or administrative agencies ; to 
transfer any duties or powers, together with any portion of the 
personnel and equipment, from one such agency to another ; and 
to make whatever regulations and issue whatever orders might 
be necessary to carry out these provisions. The President was 
further authorized to establish an executive agency for exercis- 
ing such control over the production of aeroplanes and aircraft 
equipment as he might consider advantageous. He had no pow- 
er, however, to abolish any bureau or eliminate its functions al- 
together, but was authorized to make such recommendations to 
Congress in that regard as he might deem proper. Moreover, 
the act was strictly a war measure, in that it was expressly pro- 
vided that the authority granted was to be exercised "only in 
matters relating to the conduct of the present war ; ' ' and furth- 
er, that the act was to remain in force no longer than ' ' six months 
after the termination of the war by the proclamation of the treaty 
of peace," all executive agencies and functions at that time re- 
verting to their former status under existing law.-^ 

The President was thus, by the terms of this act, given com- 
plete control over the administrative machinery of the nation as 
used for the purposes of the war.^° The act met with consider- 
able opposition as an unwarranted and dangerous extension of 
the President's power ;^^ while at least one distinguished au- 
thority held that it was entirely unnecessary, claiming that the 

the Overman Bill and Senator Chamberlain's War-Cabinet bill, and the 
probable motives behind the latter, are described by J. M. Leake, "The 
Conflict over Coordination," in Am. Pol. Sei. Bev., XII, 365-380 (Aug., 
1918). 

29 See text of act in Wigmore, op. cit., 586-587. 

30 See an excellent summary by Senator Fletcher of what might be 
accomplished under this act. Cong. Eecord, 65 Cong., 2 Sess. (Apr. 22, 
1918), 5842. 

31 Especially from Senators Cummins (Rep.), and Reed and Hoke 
Smith (Dems.). 



175] CONTROL OF ADMINISTRATION 175 

President already had full constitutional power to make such 
transfers of functions and consolidations of agencies on his own 
initiative. "I think," said this former Attorney-General and 
Secretary of State, "the President has the authority to require 
every executive officer and every department of the Government 
to do anything that he directs to be done in order to prosecute 
this war to a successful conclusion, I think he has the power to 
delegate from one Cabinet officer to another the discharge of any 
particular duty that he thinks such a Cabinet officer can dis- 
charge better than the one upon whom it would normally be in- 
cumbent. I do certainly think that the President has all those 
powers. . . As I have read the Overman bill, in so far as it 
proposes to authorize the President to utilize and coordinate ex- 
ecutive agencies, . . I would not hesitate a second to advise 
the President of the United States that he now possesses that 
power. ' ' ^^ "^ 

The majority in Congress felt, however, that the act was 
not only justified in order to avoid the suspicion or necessity of 
the President setting himself up as a dictator and doing the same 
things without definite authority of law,^^ but also that it was 
necessary to secure the proper coordination of effort on the part 
of the agencies entrusted with carrying on the various war ac- 
tivities of the government, and was not to be considered as war- 
ranting any abuse of power by the President.^* 

32 Senator Knox (Eep.), in U. S. Senate, Apr. 3, 1918. Cong., Eecord, 
65 Cong., 2 Sess., 4898; see also ibid., 4903. A well known journal also held 
that the President's power over administration was practically absolute, 
and that if he had exercised this power, it would probably not have been 
questioned in Congress or by public opinion. It said, however, that the 
Overman Act "would dramatize the President's powers so effectively that 
no one "could question them." The Nation, May 4, 1918. 

S3 See Senator Harding's suggestion concerning the need of a dictator. 
Supra, eh. I, note 29. Senator Overman frequently emphasized the point 
that instead of exercising questionable powers without authority of law, 
as was done by President Lincoln, President Wilson had been careful to 
ask Congress for specific authority to exercise such necessary powers. 

3* Senator 'Nelson (Eep.) probably best expressed the sentiment of 
the majority when he said: "This opposition is founded on the assump- 
tion that the President from first to last will do nothing but wrong; that 
he will discontinue and dismantle all the departments instead of the proper 
assumption that he will utilize them to the best of his ability to carry 
on the war successfully. . . In order to carry on the transportation 



176 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [176 

Moreover, there were several precedents for granting such, au- 
thority as was done by the Overman Act. An act of February 
14, 1903,^^ had authorized the President "to transfer at any time 
the whole or any part of any office, bureau, division, or other 
branch of the public service engaged in statistical or scientific 
work from the Department of State, the Department of the Treas- 
ury, the Department of "War, the Department of Justice, the Post 
Office Department, the Department of the Navy, or the Depart- 
ment of the Interior, to the Department of Commerce and La- 
bor." The Act of April 28, 1908,^'^ authorized the President 
"for any special occasion" to transfer to the head of another 
department certain authority conferred upon the Secretary of 
Commerce ; the Act of June 24, 1910,^'^ authorized the Secretary 
of the Navy, with the approval of the President, to transfer the 
duties of the Bureau of Equipment to the other bureaus and of- 
fices of the Navy Department ' ' in such manner as the Secretary 
of the Navy shall consider expedient and proper ; ' ' while by the 
Act of March 3, 1917,^^ the Bureau of Efficiency was required to 
investigate duplication of service in the various executive depart- 
ments and establishments of the Government and make a report 
to the President, who was authorized, "after such report shall 
have been made to him, whenever he finds such duplications do 
exist, to abolish the same." Apparently there was no exercise 
of the power authorized by this last-mentioned act, for the rea- 
son that the Bureau of Efficiency was employed during the war 
to devise a system for the work of the War-Risk Insurance Bu- 
reau and hence had never been able to make the required report 
to the President.^'' 

In addition to the statutes above mentioned, others have been 
passed applicable to emergencies only, u^nder which the Presi- 
dent is authorized at such times to transfer important functions 
and services. Thus he is empowered, in time of threatened or 

of food and supplies to Europe it is necessary to have all these branches 
of the Government function and work together. That is all there is in 
this bill, and there is no use of slandering it." Cong. Becord, 65 Cong., 
2 Sess. (Apr. 3, 1918), 4886. 

35 32 Stat, at L., 830 (see. 12). 

36 35 iUd., 69 (sec. 3), 

37 36 iUd., 613. 

38 39 ibid., 1122 (sec. 8). 

39 See Cong. Becord, 65 Cong., 2 Sess. (Apr. 3, 1918), 4891. 



177] CONTKOL OF ADMINISTEATION 177 

actual war, to utilize the Public Health and Marine Hospital 
Service ''to such extent and in such manner as shall, in his judg- 
ment, promote the public interest ; " the Coast Guard, ordinarily 
a branch of the Treasury Department, may be transferred to the 
Navy, "in time of war or when the President shall so direct;" 
and the vessels, equipment, stations, and personnel of the Light- 
house Service and the Coast and Geodetic Survey are subject to 
transfer by the President to either the War or Navy Department, 
"whenever in his judgment a sufficient national emergency 
exists." Numerous acts relating to transfers of employees and 
oificials within the Civil Service have long been on the statute- 
books ; so also regarding the detail of military and naval officers 
to service with other departments or agencies.*" 

The Overman Act, while going considerably further in its 
grant of power than anything before enacted, was therefore not 
entirely novel in its essential principles, especially when consid- 
ered as a purely war-time measure. Its passage, however, arous- 
ed considerable speculation as to the probable action of the Presi- 
dent under its authority. Suggestions were thrown out of pos- 
sible radical changes, such as the setting up of a "War Super- 
Cabinet" or war council, to consist of such Cabinet members 
and heads of newly established bureaus as were more immediately 
concerned with the conduct of the war. Others did not look for 
any great changes, holding that the Overman Act was to be con- 
sidered "more as a resource, to be ready at hand as need 
arises, . . . more as a club than anything else, to bring 
about better team work, and thus to increase efficiency. ' ' *^ 

As a matter of fact, no startling changes, transfers, or con- 
solidations were made by the President as a result of the Over- 
man Act, and in no way was the regular Cabinet superseded, or 
the position of any of the executive departments in the field of 
administration impaired. President Wilson's first order under 
the authority of this act, issued on the very day the act went into 
effect, was perhaps one of the most important. This order pro- 
vided for the reorganization of the Air Service, which, as a part 
of the Signal Corps of the Army, had up to this time been under 
the direction of the Chief Signal Officer. 

40 See complete list of such acts in Cong. Becord, 65 Cong., 2 Sess. (Apr, 
3, 1918), 4901. 

41 See article in N. Y. Times, May 5, 1918. 



178 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [178 

The powers and functions of that officer were now redistribut- 
ed as follows: (1) The Chief Signal Officer was left in charge 
of telegraph and telephone operations. (2) A Director of Mili- 
tary Aeronautics was created and placed in charge of the Avia- 
tion Section of the Signal Corps, with the duty of ''operating 
and maintaining or supervising the operation and maintenance 
of all military aircraft, . . . and of training officers, en- 
listed men, and candidates for aviation service in matters per- 
taining to military aviation ; ' ' and to that end there was trans- 
ferred to his jurisdiction every function, power, and duty of the 
Chief Signal Officer in reference to such military aviation, as 
also all property and personnel used in connection with that ser- 
vice. (3) A Bureau of Aircraft Production was established as 
an executive agency to exercise complete jurisdiction and con- 
trol over the production of aircraft and aircraft equipment, with 
the Chairman of the Aircraft Board (which had been created by 
the Act of October 1, 1917) as its executive officer. He was now 
designated the Director of Aircraft Production, and was to have 
complete charge of the activities, personnel, and properties of 
the said Bureau.*^ 

By another executive order of May 28, 1918, the "War Indus- 
tries Board, which had been originally formed as one of the ad- 
visory committees of the Council of National Defense,*^ was es- 
tablished as a separate administrative agency to act for the 
President and under his direction. The functions, duties, and 
powers of the board were by this order continued as they had 
been outlined by the President in his letter of March 4, 1918, to 
the chairman, Bernard M. Baruch ;** and in its new capacity the 
War Industries Board became one of the most important fac- 
tors in coordinating the industrial resources of the nation and 
thus contributing to the successful conclusion of the war. 

The war having been won. President Wilson ordered the War 
Industries Board to be dissolved January 1, 1919, and certain of 
its functions transferred to other executive agencies. Thus the 
powers and functions of the Division of Planning and Statistics 

42 Executive order of May 20, 1918. Official Bulletin, May 21, 1918. 

43 Under authority of the Army Appropriations Act of Aug. 29, 1916. 
U. S. Stats., 64 Cong., 1 Sess., 619, 650. 

44 Official Bulletim,, May 31, 1918. For the letter referred to as out- 
lining the functions of the board, see Hid., Mar. 31, 1918. 



179] CONTROL OF ADMINISTRATION 179 

were transferred to the War Trade Board, as also the powers 
of the War Industries Board with respect to any orders, direc- 
tions, regulations, or functions that could not, in the opinion of 
the chairman, be abrogated, complied with, or fulfilled by the 1st 
of January; while those of the Wool Division were transferred 
to the Bureau of Markets in the Department of Agriculture. The 
powers and functions of the Price Fixing Committee were order- 
ed to continue until the prices fixed by the committee should 
have expired, whereupon all the papers and records should be 
delivered to the liquidating officer of the War Industries Board, 
and the committee should stand dissolved. The order further 
specified that the War Industries Board, or any number of its 
members and officials might be continued for a limited period 
after January 1st, if the chairman found that to be necessary for 
the proper performance of any duty entrusted to him or to the 
board, but only for the purpose of performing that duty and 
liquidating the affairs of the board.*^ 

Other particularly important orders issued under the Overman 
Act were those affecting the natural resources of the country. 
Thus, by executive order of July 3, 1918, the records, personnel, 
and powers of the Federal Trade Commission relating to the pro- 
duction and distribution of coal and coke were taken from that 
body and transferred to the Fuel Administration.*® By another 
order of July 31, 1918, the President likewise placed the control 
of the petroleum supply in the hands of the Fuel Administrator, 
directing, however, that such control should be exercised through 
a Committee on Standardization of Petroleum Specifications, the 
composition of which was prescribed in the order.*^ Of a similar 

45 Executive order of Dee. 31, 1918. Official U. S. Bulletin, Jan. 29, 
1919. While this executive order dissolving the War Industries Board 
was specifically based on the Overman Act, the order of May 28, 1918, 
establishing that board as an administrative agency contained no reference 
to that act or any other statute, tho that authority was; evidently 
presumed. Another executive order apparently issued under authority of 
the Overman Act, but making no specific reference to it, was that of 
June 25, 1918, transferring the gas experiment station at American Uni- 
versity (Washington, D. C.) from the jurisdiction of the Bureau of 
Mines to that of the War Department. Official Bulletin, June 28, 1918. 

■ie Ibid., July 10, 1918. 

^7 Ibid., Aug. 7, 1918. This committee was to be composed of 7 mem- 
bers, as follows: a ehairman appointed by the Fuel Administrator, one 



180 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [180 

nature was a later order conferring the control of the mineral 
resources of the country upon the Secretary of the Interior.*^ 

Numerous other executive orders were issued under the au- 
thority of the Overman Act, transferring and coordinating va- 
rious functions and services. On May 31st, all the law officers 
of the government were ordered to ''exercise their functions un- 
der the supervision and control of the head of the Department 
of Justice," excepting only those officers in the Philippines, the 
Comptroller of the Treasury, and the Judge Advocates General 
of the Army and Navy;*^ on June 18th, the war housing activ- 
ities were placed under the control of the Secretary of Labor ; ^° 
and on July 1st, all the sanitary and public health services were 
concentrated under the supervision of the Secretary of the Treas- 
ury, excepting those health functions military in character, ex- 
ercised by the Surgeons General of the Army and Navy and by 
the Provost Marshal General.^^ 

Finally, to show the great variety in the actions taken under 
the Overman Act, mention may be made of the executive order 
of October 3, 1918, transferring $120,000 from the appropriation 
of $1,620,000 for the censorship of foreign mails under the Post 
Office Department, and allotting that amount to the Secretary 
of War for the censorship of the mails in the Panama Canal 
Zone f^ and of the executive order of October 22, 1918, by which 
the President tranferred a single individual (W. F. Sloan, 
of the Division of Program and Statistics) from the Bureau 
of Aircraft Production to the Post Office Department for such 
duties as might be assigned to him by the Postmaster General in 
connection with the control and operation of the telegraph and 
telephone services.^^ 

The excellent results of the ' ' blanket authority ' ' thus conferred 
on the President with regard to administration in time of war, 

member appointed by the Secretary of War, one by the Secretary of the 
Navy, one by the chairman of the Shipping Board, one by the Director 
General of Eailroads, one by the Director of the Bureau of Mines, and one 
by the Director of the Bureau of Standards. 

48 Official Bulletin, Nov. 18, 1918, 

49 Ibid., June 4, 1918. 

50 IMd., June 20, 1918. 

51 Ibid., July 2, 1918. 

52 Ibid., Oct. 10, 1918. 
5^ Ibid., Nov. 13, 1918. 



181] CONTROL OF ADMINISTRATION 181 

may be considered to have set a precedent for the future, which 
will undoubtedly be followed in case of another emergency. As 
a result, therefore, of his duty to administer and enforce the 
laws, of his power to nominate, appoint, and dismiss the chief 
administrative officers, and of the administrative powers confer- 
red by statute, it may fairly be said that the President, in time 
of war especially, ''has become in effect the administrator-in- 
chief of the Government. ' ' ^* 



54 Cf. Willoughby, Government Organisation in War Time and After, 
5-6. 



CHAPTER XI 

POWERS OF POLICE CONTROL 

The Bill of Rights is generally considered the most sacred part 
of the Constitution, especially those portions of it guaranteeing 
freedom of speech, of the press, and of assembly; security from 
arbitrary arrest and deprivation of property ; and a speedy trial 
by jury.^ One of the most important, as well as one of the 
most perplexing questions that arise in time of war is that of the 
extent to which these ordinary civil rights of the individual may 
be restricted in the interest of the public safety and the na- 
tional defense. Clearly the Constitution is not merely a peace 
instrument, but was intended to protect the individual in time 
of war as in time of peace. The doctrine of inter armas leges 
silent can have no place in a constitutional government;^ never- 
theless it must also be recognized that the guaranty of civil rights 
cannot apply in the same fashion, nor to the same extent, in time 
of war as under normal conditions. 

One distinguished authority says that "war is a negation of 

1 Amendments, Arts. I, IV, V, VI. 

2 ' ' The Constitution of the United States is a law for rulers and 
people, equally in war and in peace, and covers with the shield of its 
protection all classes of men, at all times, and under all circumstances. 
No doctrine, involving more pernicious consequences, was ever invented 
by the wit of man than that any of its provisions can be suspended dur- 
ing any of the great exigencies of government." Ex parte Milligan, 4 
Wall., 2, 120-121 (1866). However, a committee of the N. Y. Bar Asso- 
ciation, at its meeting in Jan., 1917, reported as follows: "In time of 
war the laws are silent; during the war civil rights may be suspended at 
the will of the Commander-in-Chief. The Constituton does not inure to 
the benefit of the public enemy, of spies, or of enemy sympathizers. ' ' 
This position was severely criticized by Dean H. W. Ballantine, of the 
College of Law in the University of Illinois, in an article, "The Effect 
of War on Constitutional Liberty," in Case and Comment, XXIV, 3 
(June, 1917). 

182 



183] POWERS OF POLICE CONTROL 183 

civil rights," and holds that in its control over the life, liberty, 
and property of those whom it recognizes as public enemies, Con- 
gress is limited "only by the dictates of humanity and a respect 
for the practice of nations." ^ Another writer contends that the 
amendments guaranteeing these rights were intended " as dec- 
larations of the rights of peaceful and loyal citizens, and safe- 
guards in the administration of justice by the civil tribunals ; but 
it was necessary, in order to give the government the means of 
defending itself against domestic or foreign enemies, to maintain 
its authority and dignity, and to enforce obedience to its laws, 
that it should have unlimited war powers ; and it must not be 
forgotten that the same authority w^hich provides those safeguards 
and guarantees those rights, also imposes upon the President and 
Congress the duty of so carrying on war as of necessity to super- 
sede and hold in temporary suspense such civil rights as may 
prove inconsistent with the complete and effectual exercise of 
such war powers and of the belligerent rights resulting from 
them. . . The rights enjoyed under the constitution in time 
of peace are different from those to which he is entitled in time 
of war. ' ' * 

Even if we do not fully accept the contention of these writers 
that civil rights may be suspended in time of war, still it would 
seem to be apparent that at such a time these rights must be 
subject to some modification, restriction, or at least, very care- 
ful supervision, in order that the government may contend suc- 
cessfully with sedition and disloyalty from within as well as 
against the enemy without; the principle justifying this view 
being that the rights of the individual must yield to those of the 
state in the time of the state's peril from a public enemy,^ Hence 
there have been developed what may be called the police powers 
of the President in time of war, that is, the powers exercised by 
him in restraining and controlling the actions of individuals, 

• 3W. A. Dunning, in Pol. Sci. Quar., I, 178. 

4 Whiting, War Powers under the Constitution, 51. But in his dissent- 
ing opinion in the recent case of Abrams v. United States, Justice Holmes 
declared that the right of free speech is the same in war as in peace, say- 
ing, "It is only the present dangers of immediate evil or an intent to 
bring it about that warrants Congress in setting a limit to the expression 
of opinion where private rights are not concerned." 250 XJ. S., 616 
(1919). 

5 Cf. Glenn, The Army and the Law, 144. 



184 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [184 

whether they be citizens or aliens, within the limits of the coun- 
try, during a period of war or similar emergency. 

The relation of this war power to the rights of enemy aliens 
who are found within the country after the outbreak of a war 
is comparatively simple. International law from its very begin- 
ning recognized the right of a state to arrest such enemy aliens 
immediately upon the outbreak of war and detain them as cap- 
tives during the period of hostilities. Later long-continued prac- 
tise brought about the rule that a reasonable time for departure 
should be given before arrest, developing finally into the rule 
that such aliens should be permitted to remain during the entire 
period of the war, unless military considerations required their 
expulsion.® The right to arrest or otherwise restrict and govern 
the conjiuct of enemy aliens, has, however, never been formally 
abandoned, and was indeed revived on a wholesale scale by each 
belligerent during the recent World War. 

In the United States, the right of a state under international 
law thus to regulate and restrict the conduct and movements of 
enemy aliens has been definitely vested in the President. An 
act of Congress passed nearly a century and a quarter ago,'^ 
designated as alien (gnemies all male natives, citizens, denizens, 
or subjects of a hostile nation or government, who were at least 
fourteen years of age and not actually naturalized ; and in 1918 
the scope of this act was enlarged so as to include women.^ The 
President, by virtue of these acts, is authorized to direct the con- 
duct to be observed on the part of the United States towards these 
enemy aliens, the manner and degree of the restraint to which 
they shall be subject, and in what cases and upon what security 
their continued residence in the United States may be permit- 
ted ; to provide for the removal of those who are not to be per- 
mitted to remain ; and ' ' to establish any other regulations which 
shall be found necessary in the premises for the public safety." 
In case of removal being ordered, the President is further au- 
thorized, at his discretion, to give such reasonable time for de- 

6 Lawrence, Principles of International Laio, 387-389 ; Hershey, Es- 
sentials of International Public Law, 362. 

7 Act of July 6, 1798. Annals of Cong., 5 Cong., Ill, App., 3753; U. S. 
Bev. Stats., sees. 4067-4070. 

sAct of Apr. 16, 1918. U. S. Stats., 65 Cong., 2 Sess., 531. 



185] POWERS OF POLICE CONTROL 185 

parture "as may be consistent with the public safety, and ac- 
cording to the dictates of humanity and national hospitality. ' ' 

In other words, the President is, impliedly by the rules of 
international law and expressly by statute, vested with full pow- 
er to restrict and control the conduct and movements of alien 
enemies as he may see fit. He may permit them to stay in the 
United States during the course of a war, with such restrictions 
upon their conduct as he may deem proper, or with no restric- 
tions; he may order them to depart from the country, and if 
they refuse or neglect to go, may compel their removal; or he 
may arrest and intern them for the period of the war. His ac- 
tions under these powers are final, and in no way subject to ju- 
dicial review.^ 

Until recently little use seems to have been made of this pow- 
er. During the war of 1812, aliens were ordered to report their 
names and obtain "certificates" once a month.^° Otherwise they 
have apparently been permitted to remain in the United States 
with no harrassing regulations governing their conduct and 
movements. During the recent war with Germany and Austria- 
Hungary, however, the magnitude of the struggle, involving as 
it did practically every resource and industry of the nation, and 
the great number of citizens or subjects of those countries resi- 
dent in the United States, made the danger from such enemy 
aliens considerably more serious than ever before. 

President Wilson, acting under the authority of the Act of 
1798, therefore took precautionary measures immediately upon 
the entry of the United States into the war, and in the very 
same proclamation announcing the existence of a state of war,^^ 
he established a set of twelve regulations governing the conduct 
of such enemy aliens within the United States. Under these regu- 
lations, the possession by enemy aliens of any sort of fire-arm 
or signal apparatus was prohibited; a barred zone was created 
around every fort, arsenal, and other government property; at- 
tacks or threats of any sort against the government, its meas- 
ures, policies, or personnel, were not allowed; their residence 
within any prohibited area that might be designated by the Presi- 

9 Glenn, The Army and the Law, 87. 

10 Life and WorTcs of John Adams, X, 42. 

11 Proclamation of Apr, 6, 1917. Z7. S. Stats., 65 Cong,, 1 Sess., Procs., 
6. 



186 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [186 

dent was not permitted ; their departure from and entry into the 
United States was allowed only under such restrictions as the 
President might prescribe; hostile acts, or acts giving "infor- 
mation, aid, or comfort" to the enemy were of course forbidden ; 
and they were subject, upon suspicion, to summary arrest and 
internment. 

These regulations of April 6, were supplemented by eight ad- 
ditional regulations established in the proclamation of November 
16, 1917,^^ which absolutely excluded enemy aliens from such 
regions as the territorial waters of the United States, the Dis- 
trict of Columbia, and the Panama Canal Zone; required them 
to register ; and ordered them to obey such restrictions and regu- 
lations upon their residence, occupation, and travel, as the At- 
torney General might make from time to time. Upon the dec- 
laration of war against Austria-Hungary, the scope of these regu- 
lations was extended to include the citizens and subjects of that 
country ; ^^ and finally, to include the alien women of both Ger- 
many and Austria-Hungary.^* 

While the Act of July 6, 1798, supplemented by the Act of 
April 16, 1918, therefore conferred extensive powers of police 
control upon the President, there can be no question but that 
such powers are strictly in line with the accepted rules of in- 
ternational practise, and even without these statutes, might be 
said to have been vested in the President as the Chief Executive 
and as Commander-in-Chief. 

Somewhat more doubtful are the powers conferred by the 
famous Alien Act of 1798,^^ which was passed during the stress 
of the expected war with France and applied to all aliens, wheth- 
er from an enemy or a friendly country. By the provisions of this 
act, the President was authorized to order out of the country 
"such aliens as he shall judge dangerous to the peace and 
safety of the United States, or shall have reasonable ground to 

12 TJ. S. Stats., 65 Cong., 1 Sess., Procs., 72. 

13 Proclamation of Dec. 11, 1917. IMd., 2 Sess., 85. 

14 Proclamation of Apr. 19, 1918. Ibid., 128. On Christmas Day of 
1918, these regulations were rescinded, in their entirety as extended to 
women, and also as applied to men, excepting only the restrictions as to 
departure from and entry into the United States. Proclamation of Dec. 
23, 1918. Ibid., 3 Sess., 274. This proclamation is unique in being done 
"at the city of Paris, in the Republic of France." 

15 Act of June 25, 1798. Annals of Cong., 5 Cong., Ill, App., 3744. 



187] POWERS OF POLICE CONTROL 187 

suspect are concerned in any treasonable or secret machinations 
against the Government thereof. ' ' A license to reside within the 
United States at any place designated by the President might 
be secured, if the alien concerned could prove, "to the satisfac- 
tion of the President, ' ' that he was not dangerous to the public 
safety; but any alien returning to the United States after his 
removal, unless by permission of the President, was to be im- 
prisoned "so long as, in the opinion of the President, the public 
safety may require," 

This measure thus gave the President practically unlimited 
police control over all aliens within the United States. Tho en- 
acted during a time of technical peace, the Alien Act was de- 
signed (together with the Sedition Act) as a war measure, "to 
afford the President of the United States an effective weapon 
against what seemed an especially pernicious and dangerous form 
of domestic opposition in time of war, " ^^ A great many of the 
recently admitted foreigners were extreme radicals who "ex- 
pressed their opinions by speech or pen with a venomous facility 
that has few counterparts in these milder times," condemned 
every magistrate in power in the United States, and whose out- 
pourings could not be looked upon as altogether harmless.^^ 
There might even be said to have been a precedent for the Alien 
Act in a similar act passed in Virginia in 1785 and reenacted in 
1792, but which, as Madison pointed out, differed in that the Vir- 
ginia act expressly applied only to enemy aliens in time of actual 
war,^^ 

The powers conferred by the Alien Act were upheld as a legi- 
timate exercise of the war power, in the report of a House com- 
mittee submitted February 21, 1799, as follows: "The right of 
removing aliens, as an incident to the power of war and peace, 
according to the theory of the Constitution, belongs to the gov- 
ernment of the United States, . . Congress is required to 

16 p. M. Anderson, in Beport, Am. Hist. Assn. 191$, 115. ' ' French 
spies then swarmed in our cities and in our country; some of them were 
intolerably impudent, turbulent, and seditious. To check them, was 
the design of the law." Adams to Jefferson, June 14, 1813. Life and 
WorJcs of John Adams^ X, 42. The limitation of the act to two years is 
also an indication that it was designed purely as a war measure, 

17 Channing, History of the United States, TV, 220. 

18 Writimgs of James Madison, VI, 369. 



188 WAR POWEES OF THE EXECUTIVE IN UNITED STATES [188 

protect each state from invasion; and it is vested* . . . with 
powers to make all laws which shall be proper to carry into effect 
all powers vested by the Constitution in the government of the 
United States, or in any department or officer thereof; and to 
remove from the country, in times of hostility, dangerous aliens, 
who may be employed in preparing the way for invasion, is a 
measure necessary for the purpose of preventing invasion, and, 
of course, a measure that Congress is empowered to adopt. . . 
Although the committee believe that each of the measures adopt- 
ed by Congress [referring also to the Sedition Act] is suscept- 
ible of an analytical justification, on the principles of the Con- 
stitution and national policy, yet they prefer to rest their vindi- 
cation on the true ground of considering them as parts of a gen- 
eral system of defense adapted to a crisis of extraordinary diffi- 
culty and danger. ' ' ^^ Even the bitterest critics of the Alien 
Act questioned its constitutionality only as it applied to friendly 
aliens, admitting frankly that "the removal of alien enemies is 
an incident to the power of war, ' ' ^^ 

Apparently the power given to the President by the Alien 
Act was not actually exercised in a single instance ; ^^ altho 
in a couple of cases final action by the President was probably 
forestalled only by the voluntary departure of the person con- 
cerned, and a considerable number of foreigners are said to have 
left the country, anticipating the enforcement of the act,^^ On 
the whole, it is probably correct to say that this law was ''neith- 
er unjustifiable in purpose nor administered with special harsh- 
ness. ' ' ^^ 

The power of the President to deal summarily with citizens 
whom he may consider dangerous to the public safety is not so 
clear. The provision in the Constitution permitting the sus- 
pension of the privilege of the writ of habeas corpus ''when in 

19 ^m. State Papers, Misc., I, 182, 183; Elliot's Debates, IV, 441. 

20 See Madison 's famous Eeport of 1800 on the Virginia Eesolutions. 
Writings of James Madison, VI, 366-367. 

21 Life and Works of John Adams^ X, 42. President Adams, in at least 
one instance, expressed a willingness to apply the act. Ibid., IX, 5. 

22 See article by F. M. Anderson, "The Enforcement of the Alien and 
Sedition Laws," in Beport, Am. Hist. Assn. 1912, 115-126, esp. 116-117. 

23 Bascom, Growth of Nationality m the United States, 24. See also 
Channing, op. dt., IV, 223-224. 



189] POWERS OF POLICE CONTROL 189 

eases of rebellion or invasion the public safety may require it, ' ' ^^ 
shows that the taking of extraordinary measures in cases of such 
emergency was clearly recognized as necessary and proper.^^ 
Altho the Constitution itself does not expressly state by what au- 
thority the privilege of the writ may be suspended, it had been 
the general opinion, up to the time of the Civil War, that Con- 
gress alone had the power to judge of the exigency requiring 
that action. This opinion had been induced, not only by the 
position of the habeas corpus clause in that part of the Consti- 
tution devoted to the legislative department,^^ but also by pre- 
cedent,^'^ by the practise under the Constitution,^^ and by the 
weight of authority.^® 

24 Art. I, Sec. 9, CI. 2. 

25 There was some objection to this clause at the time. Thus Jeffer- 
son in a letter to Madison, July 31, 1788, protested as follows: "Why- 
suspend Hab. Corp. in insurrections & rebellions? ... If publick 
safety requires that the government should have a man imprisoned on 
less probable testimony in those than in other emergencies; let him be 
taken & tried, retaken & retried, while the necessity continues, . only 
giving him redress against the government for damages. Examine the 
history of England. See how few of the cases of the suspension of the 
Habeas Corpus law have been worthy of that suspension. They have 
been either real treasons wherein the parties might as well have been 
charged at once, or sham plots where it was shameful they should ever 
have been suspected. Yet for the few cases wherein the suspension of 
the hab. corp. has done real good, that operation is now become habit- 
ual, & the minds of the nation almost prepared to live under its con- 
stant suspension." Writings of Thomas Jefferson^ V, 46-47. 

26 In the state ratifying conventions it was taken for granted that 
Congress alone could suspend the writ. The following amendment, for 
example, was proposed by the New York convention of 1788: "That the 
privilege of the habeas corpus shall not, by any law, b© suspended for a 
longer term than six months, or until twenty days after the meeting of 
the Congress next following the passing of the act for such suspension." 
Elliot's Debates, I, 330. 

27 In England, Parliament, not the Crown, suspends the writ. 

28 President Jefferson's message of Jan. 22, 1807, on Burr's con- 
spiracy, was followed by the passage in the Senate of a bill suspending 
the writ of habeas corpus in certain cases for three months. In the House 
the bill was rejected by an overwhelming majority. Neither in the mes- 
sage of the President nor in the discussion in Congress was there any 
suggestion of the President's right to exercise that power. Annals of 
Cong., 9 Cong., 2 Sess., 39-43, 44, 402-425. 

29^0; parte Bollman, 4 Cr., 75, 101 (1807); Story, Commentaries on 



190 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [190 

With the outbreak of the Civil War, this settled opinion was 
disregarded by President Lincoln, acting on his own initiative 
or through his subordinates, and upon the advice of his Attorney 
General.^" On April 27, 1861, he authorized General Scott to 
suspend the writ of habeas corpus by the following order : ' * You 
are engaged in suppressing an insurrection against the laws of 
the United States. If at any point on or in the vicinity of any 
military line which is now or which shall be used between the 
city of Philadelphia and the city of Washington, you find re- 
sistance which renders it necessary to suspend the writ of habeas 
corpus for the public safety, you personally, or through the of- 
ficer in command at the point at which resistance occurs, are 
authorized to suspend that writ. ' ' ^^ 

On May 10, the President by proclamation also authorized the 
commander of the United States forces on the coast of Florida, 
* ' if he shall find it necessary, to suspend the writ of habeas cor- 
pus and to remove from the vicinity of the United States for- 
tresses all dangerous or suspected persons ; " ^^ on June 20, he 
directed General Scott to suspend the writ in the case of a single 
oflScer charged with treason f^ on July 2 and October 14, he ex- 
tended his order of April 27 to cover the military line from 
Washington to Bangor, Maine f'^ and on December 2, he empow- 
ered General Halleck to suspend the writ at his discretion in 
the state of Missouri.^^ Finally, by proclamation of September 
24, 1862,^^ the President declared that all persons aiding or abet- 
ting the rebellion, discouraging enlistments, resisting drafts, or 
guilty of ''disloyal practices," should be subject to trial by court- 
martial or military commission, and ordered the suspension of 
the writ of habeas corpus in their cases — a proclamation which 

the Constitution, II, 208. Cf. Chambrun, The Executive Power, 241; Win- 
throp, Ahridgtnent of Military Law (2nd ed.), 330-331. 

30 Attorney General Bates, July 5, 1861. 10 Op. Atty. Gen., 74. 

31 Sicliardson, Messages and Papers of the Presidents, VI, 18. Only 
two days before, Lincoln declined to permit Gen. Scott to arrest or dis- 
perse members of the Maryland legislature suspected of favoring seces- 
sion, before the legislature should meet. Hid., 17. 

32 Ibid., 17. 

33 iMd., 19. 
silUd., 19, 39. 

35 IMd., 99. 

36 Ibid., 98-99. 



191] POWERS OF POLICE CONTROL 191 

an eminent authority has characterized as "a perfect platform 
for a military despotism. ' ' ^^ 

While the suspension of the privilege of the writ of habeas 
corpus does not of itself authorize arbitrary arrests or any un- 
usual procedure in trial, it has that practical effect, since those 
suffering arbitrary arrest would have no remedy to prevent the 
continuance of their confinement during the suspension of the 
writ,^^ Arbitrary arrests were made from the very beginning of 
the war. Members of the Maryland legislature, the mayor of 
Baltimore, and several other prominent citizens were arrested 
by order of the Secretary of War, in order to prevent the pass- 
age of an ordinance of secession. Later, wholesale arrests were 
made all over the country, especially in the West, some by direct 
authority of the President,^^ some by order of the Secretary of 
State, some by that of the Secretary of War, sometimes merely 
by virtue of a simple telegram, and in no case with the warrant 
required by the Constitution, the only justification being that 
the persons so arrested were, by treasonable speaking and writ- 
ing, giving aid and comfort to the enemy, and that their im- 
prisonment was necessary for the public safety.*" 

In March, 1863, Congress expressly authorized the President 
to suspend the writ of habeas corpus and legalized his past 

37 W. A. Dunning, in Fol. Sci. Quar., I, 188. "Discouraging enlist- 
ments and disloyal practices were offences unknown to the law, and the 
phrase disloyal practice was large enough to include anything." S. G. 
Fisher, in Pol. Sci. Quar., Ill, 457. The elastic interpretation of the lat- 
ter term is indicated by the following contemporary definition: "He is 
a public enemy who seeks falsely to exalt the motives, character, and 
capacity of armed traitors, to magnify their resources, to encourage 
their efforts by sowing dissension at home, or by inviting intervention 
of foreign powers in our affairs. He who overrates the success, increases 
the confidence, and encourages the hopes of our adversaries, or under- 
rates, diminishes, or weakens our own, and he who seeks false causes of 
complaint against the officers of our government, or inflames party spirit 
among ourselves, . . . gives to our enemies that moral support which 
is more valuable to them than regiments of soldiers, or millions of dol- 
lars." "Whiting, War Powers under the Constitution, 197-198. 

38 Cf. Burgess, The Civil War and the Constitution, II, 216. 

39 See Executive order of Aug. 8, 1862. Eichardson, op. cit., VI, 121. 

40 Ehodes, History of the United States, III, 553-556 ; S. G. Fisher, 
"The Suspension of Habeas Corpus during the War of the Rebellion," in 
Poh Sci. Quar., Ill, 454-488, esp. 457. 



192 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [192 

acts,^^ but for two years Lincoln had suspended the writ of his 
own accord, and had made arrests without warrant, holding the 
suspects as long as he pleased,^^ not only without express author- 
ity and contrary to the prevailing opinion of his power up to 
the time of the Civil War, but in direct oppostion to the author- 
itative ruling of Chief Justice Taney.*^ He was, however, 
clearly supported by public opinion,** and if any constitutional 
principle can be deduced, it is ''that the President may in an 
emergency exercise the right to arrest and detain individuals 
until Congress acts. ' ' *^ There is scarcely any doubt, as is as- 
serted by an eminent authority, that the practises of the admin- 
istration in the Civil War would be repeated under like circum- 
stances, and that they are to be considered as the precedents of 
the Constitution rather than the opinion of the Supreme Court.*® 
With regard to the freedom of speech and press, some re- 
strictions on both have always been considered warranted in spite 
of the constitutional guaranties, even in time of peace.*^ In time 

41 Act of Mar. 3, 1863. 12 Stat, at L., 755. 

42 By executive order of Feb. 14, 1862, he ordered the release of all 
politiical prisoners on their parole to render no aid or comfort to the 
enemies of the United States, granting annesty for their past disloyalty 
to those who should keep their parole, and declaring that "extraordinary 
arrests will hereafter be made under the direction of the military au- 
thorities alone." Eichardson, op. dt., VI, 102-104. 

^3 Ex parte Merryman, Fed. Cases No. 9487 (1861). 

44 Cf. S. G. Fisher, op. cit., 483. 

45 See W. A. Dunning, "The Constitution in Civil War," in Pol. Set. 
Quar., I, 163-198, esp. 189; cf. Bascom, Growth of Nationality, 112-114. 
The most notable assertion of the President's power was the pamphlet by 
Horace Binney, "The Privilege of the Writ of Habeas Corpus under the 
Constitution," well summarized by S. G. Fisher, op. cit., 459-465. For 
Lincoln's own defense of his actions, see his message to Congress, July 
4, 1861, and his replies to communications from New York and Ohio 
Democrats, June 12 and June 29, 1863. Eichardson, op. cit., VI, 25; Me- 
Pherson, History of the BebelUon, 163-167, 170-172. 

46 " It may therefore be claimed that it is the precedent of the Con- 
stitution in Civil War that the President may suspend all the safeguards 
of the Constitution in behalf of personal liberty anywhere within the 
country, taking upon himself the responsibility therefor to Congress, and 
that subsequent authorization by Congress to do the like things in future 
works indemnification, and makes the preceding Presidential assumptions 
legitimate and lawful, if they lacked anything of being so before." 
Burgess, The Civil War and the Constitution, II, 217. 

47 ' ' What is the liberty of the press ? Who can give it any definition 



193] POWERS OF POLICE CONTROL 



193 



of war, these may be considerably extended so as to prevent in- 
terference with the successful prosecution of the war by stirring 
up disloyalty or sedition, by encouraging disobedience to the 
laws, or by giving aid or comfort to the enemy in any way.^^ In 
fact, it has been officially asserted that the freedom of the 
press in war time rests largely with the discretion of Congress.*^ 
Such war time restrictions may take the form of penalizing 
certain kinds of speech or writing. This was the nature of the 
famous Sedition Act of 1798,^° which, designed, like the Alien 
Act already referred to, as a war measure,^^ attempted to curb 
the spread of sedition during the crisis with France by punishing 
false, scandalous, and malicious writings against the Govern- 
ment, either house of Congress, or the President, written with 
intent to stir up sedition. Of a similar nature, but even more 
clearly designed as a war measure, is the Espionage Act of 
1917,^2 of which it has been said that "few more sweeping meas- 
ures have ever found their way to the national statute book." ^^ 

which would not leave the utmost latitude for evasion? I hold it to be 
impracticable; and from this, I infer that its security, whatever fine 
declarations may be inserted in any constitution respecting it, must al- 
together depend on public opinion and on the general spirit of the people 
and of the government." The Federalist, No. 84 (Goldwin Smith ed., p. 
476). 

48 In its decisions upholding the constitutionality of the Espionage 
Act of 1917, the Supreme Court declared that the first amendment affords 
no protection to an individual convicted under that act for printing and 
distributing in time of war a document calculated to cause insubordination 
in the military and naval forces and obstruction to recruiting; that it 
likewise is no protection against conviction for publishing and circulating 
newsapers or articles attempting to cause disloyalty and mutiny; and 
that it is no valid defense against conviction for delivering a speech op- 
posing the war, so expressed that the natural effect is to obstruct re- 
cruiting. Schenclc v. United States, 249 U. S., 47 (1919) ; FrohwerTc v. 
United States, ibid., 204; Debs v. United States, ibid., 211. 

49 War Cyclopedia (1st ed.), 101. 

50 Act of July 14, 1798. Annals of Cong., 5 Cong., Ill, App., 3776. 

51 See report of House Committee, Feb. 21, 1799. Am. State Papers, 
Misc., I, 182, 183. That the act was designed purely as an emergency 
measure is further indicated by the fact that it was to continue in effect 
only until Mar. 3, 1801. 

52 Act of June 15, 1917. Public No. 24, 65 Cong., in Wigmore, Source- 
Boole of Military Law and War-Time Legislation, 484-500. 

53 War Cyclopedia (1st ed.), 88. 



194 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [194 

As amended in 1918,^* this act is especially stringent, making 
it a penal offense, not only to hinder the success of the United 
States and promote that of the enemy by making false reports, 
by inciting or attempting to incite disloyalty or mutiny, or by 
obstructing recruiting and enlistment, but also to ''willfully 
utter, print, write, or publish any disloyal, profane, scurrilous, 
or abusive language about the form of government . . , or the 
Constitution . . , or the military or naval forces . . , 
or the flag . . , or the uniform of the Army and Navy of the 
United States," or any language intended to bring these into 
"contempt, scorn, contumely, or disrespect." Through his con- 
stitutional power to "take care that the laws be faithfully exe- 
cuted, ' ' it was of course largely within the discretion of the Presi- 
dent to interpret these provisions in such a way as to make them 
instruments of oppression or genuine attempts to suppress dis- 
loyalty and sedition.^^ 

Another method of placing war time restrictions on the press 
is through censorship in advance of publication. This method 
is largely executive. The President, as Commander-in-Chief, 
has the undoubted power to suppress or censor such newspapers 
or other publications in occupied territory as he may deem in- 
jurious to the public interests.^^ At least one writer asserts that 
the President also has this power within the United States as well. 
He says that the power necessarily exists somewhere to prevent 
disclosures useful to the enemy, should such disclosures be threat- 
,ened or undertaken, and maintains that "it is of the very essence 
of all things which lie between success and failure in war that 
this power should be reposed where it can be exercised instantly, 
as the exigencies of the situation may develop the need," and 
that therefore the President is not dependent upon Congress in 
order to exercise the power of censorship, but has the right, as 
Commander-in-Chief, to prevent and suppress such publications. 

54 Act of May 16, 1918. Public No. 150, 65 Cong., in Wigmore, op. cit., 
500-501. 

55 For a vigorous criticism of these Espionage Acts and the manner of 
their enforcement, as well as for a complete discussion of the subject of 
the freedom of speech in war time, see Chaffee, Freedom of Speech, esp. 
chs. 1-2. For the enforcement of the Sedition Act of 1798, see F. M. An- 
derson, op. cit., in Eeport, Am. Hist. Assn. 19 fS, 118-122. For opinion as to 
its constitutionality, see Story, Commentaries on the Constitution, II, 619, n. 

56 Dig. Ops. J. A. G., (ed. 1901), 426. 



195] POWERS OF POLICE CONTROL 195 

''To deny the power is to deny the right of the commander-in- 
chief to protect his armies against a danger as obvious as would 
be the danger of allowing armies to organize and drill and ac- 
cumulate arms and ammunition behind the lines. ' ' ^'^ 

This power of censorship was both asserted and exercised dur- 
the Civil War. Postmaster General Blair stated it as his opinion 
"that a power and duty to prevent hostile printed matter from 
reaching the enemy, and to prevent such matter from instigating 
others to cooperate with the enemy, by the aid of the United 
States mails, exist in time of war, and in the presence of treas- 
onable and armed enemies of the United States, which do not 
exist in time of peace, and in the absence of criminal organiza- 
tions ; " ^^ which view was sustained in a report of a committee 
of Congress,^^ and a way thus opened for placing the press "at 
the mercy of the Government in time of war. ' ' 

In accordance with these views, a censorship of some sort exist- 
ed from the outset of the war, tho it was apparently never very 
effective. Government control of the telegraph lines was estab- 
lished as early as April, 1861, and a censor (H. E. Thayer) was 
appointed, with instructions from Secretary Seward to prevent 
the issue from Washington of telegraphic messages relating to 
the civil or military operations of the government, containing 
anything more than a bare statement of essential facts.*'° In Au- 
gust of the same year, an attempt was made to reach a "gentle- 
men's agreement" between the government and the press, where- 
by the newspapers were to refrain from publishing information 
giving aid or comfort to the enemy, while the government was to 
afford facilities for the transmission of suitable information. 

This proved to be a failure, due to the unscrupulous character 
of some correspondents and newspapers, and finally resort was 
had to an administrative policy of news control. The censoring 

57 T. J. O'Donnell, "Military Censorship and the Freedom of the 
Press," in Va. Law Bev., V, 178-179. 

58 Quoted in Burgess, op. cit., II, 222-223. 

59 Eeport of House Judiciary Committee, Jan. 20, 1863. Ihid., 223. 

60 For example, no mention was permitted of the criticism of Gen. Stone 
for the Ball's Bluff disaster; nor of the fact that some senators had 
urged the removal of Gen. Sherman; nor of the Cabinet's objections to 
Secretary Cameron's report. See J. G. Eandall, "The Newspaper Prob- 
lem in Its Bearing upon Military Secrecy during the Civil War," in 
Am. Hist. Bev., XXIII, 303-323, esp. 303-304 (Jan., 1918). 



196 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [196 

function was transferred from the State to the "War Department ; 
military supervision of the telegraph lines was ordered by au- 
thority of Congress, beginning in February, 1862 ; and a special 
officer was appointed for the general supervision of the telegraph 
business, with the title of Assistant Secretary of "War and Gen- 
eral Manager of Military Telegraphs.^^ Under the direction of 
this officer, regulations were drawn up governing the transmis- 
sion of news over the telegraph wires,^^ and a general policy of 
news control was instituted, tho the fact that the mails remain- 
ed open and uncensored made these but half-way measures to- 
wards effectively closing the news channels. 

There were also some attempts at suppression of newspapers 
and discipline of correspondents. In August, 1861, Postmaster 
General Blair ordered certain New York and Brooklyn papers 
excluded from the mails, and the United States marshal seized 
copies of one of them — these papers having been indicted for 
rebellious utterances ; ®^ the Baltimore Transcript, the Metropoli- 
tan Record, and the Cincinnati Enquirer were each suppressed 
for short periods by generals commanding in the departments in 
which they circulated ; while the New York World and the Journ- 
al of Commerce were seized and suppressed for three days in 
May, 1864, under orders of President Lincoln, for publishing a 
bogus proclamation implying the admission of a Union disaster. 
The editor of the Baltimore Exchange, openly sympathetic with 
secession, was arrested and confined in Fort La Fayette, but re- 
leased after some months by order of the War Department ; the 
Chicago Times was suppressed in 1863 by General Burnside, but 
his action was revoked by the President. Several of the gener- 
als, particularly Grant and Sherman, attempted at various times 

61 See order of Feb. 25, 1862, taking possession of the telegraph lines 
and naming Edward S. Sanford as military supervisor of telegraphic 
messages. The same order specifically forbade telegraphic communications 
concerning military operations not expressly authorized by the War De- 
partment, the commanding general, or the generals commanding in the 
several departments; newspapers publishing such military news without 
authority to be excluded from the telegraph service and from the rail- 
roads. Eichardson, op. cit., VI, 108-109. 

62 For these regulations, see J. G. Randall, op. cit., 305. 

63 These were the Journal of Commerce, the Daily Neivs^ the Freeman's 
Journal, and the BrooJdyn Eagle. Burgess, op. dt., II, 222 ; Cong. Becord, 
65 Cong., 2 Sess. (Feb. 19, 1918), 2557. 



197] POWERS OF POLICE CONTROL 197 

to discipline newspaper correspondents within their lines with 
varying degrees of success.^* 

While the actual governmental interference with the freedom 
of the press during the Civil War was, on the whole, compara- 
tively slight,^^ the precedent was established that ''this part of 
the Constitution [the first amendment] may be suspended by or- 
der of the Administration, when in the judgment of the Presi- 
dent the public safety demands it. ' ' ^'^ 

With the entry of the United States into the recent world war, 
the problem of news control again became acute, and on April 
13, 1917, Secretary of State Lansing, Secretary of War Baker, 
and Secretary of the Navy Daniels addressed a joint communica- 
tion to the President, setting forth their views on the subject. 
They pointed out the danger in premature or ill-advised an- 
nouncements of policies, plans, and specific activities, and sug- 
gested the need for some authoritative agency to assume the pub- 
lication of all the vital facts of national defense. ''While there 
is much that is properly secret in connection with the depart- 
ments of the Government, the total is small compared to the vast 
amount of information that it is right and proper for the people 
to have. . , It is our opinion that the two functions — censor- 
ship and publicity — can be joined in honesty and with profit, 
and we recommend the creation of a Committee on Public In- 
formation. . . We believe you have the undoubted authority 
to create this Committee on Public Information without waiting 
for further legislation, and because of the importance of the task, 
and its pressing necessity, we trust that you will see fit to do so. 
The committee, upon appointment, can proceed to the framing 
of regulations and the creation of machinery that will safeguard 
all information of value to an enemy, and at the same time open 
every department of government to the inspection of the peo- 
ple as far as possible. ' ' ^^ 

In accordance with this recommendation and this opinion as 
to his powers with regard to censorship. President Wilson, by 
executive order of April 14, 1917,^^ created such a Committee on 

64: Cong. Eecord, 65 Cong., 2 Sess. (Feb. 19, 1918), 2557; J. G. Randall, 
op. cit., 318-321, 

65 J. G. Eandall, op. cit., 322-323. 

66 Burgess, op. cit., II, 223. 

67 See text of letter in Official Bulletin, May 10, 1917. 

68 Official Bulletin, May 10, 1917. 



198 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [198 

Public Information, "to be composed of the Secretary of State, 
the Secretary of War, the Secretary of the Navy, and a civilian 
who shall be charged with the executive direction of the commit- 
tee." George Creel was appointed as the civilian chairman, and 
the Secretaries were authorized to detail an officer or officers to 
the work of the committee. 

Under the direction of the committee so created, a system of 
voluntary censorship was established. The committee at various 
times issued "requests" to the press to suppress news with re- 
spect to certain matters of military and naval value.'^'' These 
were supplemented from time to time by similar "requests"' to 
the press from the Secretary of War and the Secretary of the 
Navy,'^" to all of which the press of the country apparently re- 
sponded to the general satisfaction of the government officials.'^^ 

In addition to its direction of this voluntary censorship, the 
policy of news control was further carried out by the Commit- 
tee on Public Information through its organization of various 
kinds of publicity services. A daily paper was published, be- 
ginning May 10, 1917, in no sense in competition with the regu- 
lar news journals, but containing ' ' all proclamations and Execu- 
tive orders issued by the President; rules and regulations pro- 
mulgated by the Federal departments; official bulletins and 
statements; statutes bearing on the war and their construction; 
and all other subjects related to the prosecution of the war, to 
which publicity may properly be given. ' ' '^^ Other pamphlets 

«9 Especially information concerning the train and boat movements of 
troops, the assembling of transports and convoys, or any information from 
which inference might be drawn of embarkation for over-seas service. The 
suppression of the names of armed merchant ships which had engaged 
U-boats was also requested, in order to save the captains, if later captured, 
from the fate of Capt. Pryatt. Official Bulletin, June 14, June 15, 1917; 
May 10, June 10, 1918. On July 30, 1917, the committee published an 
extended list of matters concerning which it requested secrecy, which list 
was revised and again strongly urged upon the press on Dec. 31, 1917. 
lUd., July 31, Dec. 31, 1917. 

70 lUd., Apr. 8, May 27, Aug. 2, 1918. 

71 See statements of Secretary Daniels praising the spirit of the Ameri- 
can press in adhering to the voluntary censorship. Ibid., Feb. 12, Aug. 2, 
1918. 

72 See statement in first number, May 10, 1917. The paper was named 
the Official Bulletin, later changed to Official U. S. Bulletin. It was sus- 
pended as a government publication Mar. 31, 1919, but was continued as a 



199] POWERS OF POLICE CONTROL 199 

were compiled and issued under the direction of this committee, 
giving information as to the causes and purposes of the war;''^ 
news was gathered and disseminated to the newspapers of the 
country; motion pictures were made and distributed under its 
supervision; staffs of lecturers were organized; and agencies of 
various sorts were used to stimulate public opinion and spread 
information on the issues of the war. All this was done on the 
sole authority of the President, the committee even operating 
for a considerable time on the executive budget, but later secur- 
ing some appropriations from Congress.^* 

Besides this system of voluntary censorship and news control 
under the direction of the Committee on Public Information, a 
rigid censorship of letters and other matter sent out from the 
camps and fields was maintained by the military authorities. In 
January, 1918, this censorship was by General Order lightened 
so as to permit soldiers in camp in this country to write freely 
for publication, subject to censorship by designated officers who 
were to ''delete all references capable of furnishing important 
information to the enemy." Attention was, however, called to 
the fact that "criticism of superiors and the spreading of false 
reports which would tend to injure the military service consti- 
tute breaches of military discipline." Matter written by regu- 
lar newspaper correspondents not in the military service was 
not subject to any sort of censorship, but the order directed camp 
commanders to instruct these correspondents "that they must 
rigidly adhere to the requests for secrecy with respect to informa- 
tion of value to the enemy, as defined ... by the Commit- 

private enterprise, under the name United States Bulletin, published bi- 
weekly by Eoger W. Babson. 

73 The so-called War Information and Bed, White, and Blue series. 

74 The work and organization of the Committee on Public Information 
are outlined in Willoughby, Government Organisation in War Time and 
After, 35-39; also in a pamphlet compiled under the direction of H. H. B. 
Meyer, Chief Bibliographer of the Library of Congress, The United States 
at War; Organizations and Literature, 79-81. According to a statement by 
Mr. Creel, the committee received from the President $5,600,000, while from 
Congress it received but $1,250,000. N. Y. Times, Nov. 1, 1919. There was 
much severe criticism of the Committee on Public Information and especial- 
ly of its chairman, both during and since the war; but for a vigorous 
defense of its work, see Creel, Row We Advertised America, New York, 
1920. 



200 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [200 

tee on Public Information," violations of these instructions to 
cause a denial of the privileges of the camp.'^^ 

In addition to the voluntary and military censorship of news- 
papers and other publications thus established within the United 
States on the sole authority of the President, steps were taken 
early in the war to establish a rigid censorship over the telephone, 
telegraph, and cable systems. By executive order of April 28, 
1917, President "Wilson prohibited all companies operating tele- 
graph and telephone lines and submarine cables from transmit- 
ting messages to points without the United States and from de- 
livering messages received from such points, except such mes- 
sages as might be permitted under regulations established by the 
Secretary of War and the Secretary of the Navy.^'' This sweep- 
ing order was based on no other authority than the power vested 
in the President "under the Constitution and by the joint reso- 
lution of April 6, 1917, declaring the existence of a. state of 
war ; " in other words, solely upon his authority as Commander- 
in-Chief. 

Under this order, a particularly stringent cable censorship was 
established. The office of Director of Naval Communications 
and Chief Cable Censor was created, under whose direction a 
number of cable censorship regulations were issued May 1, and 
amended May 31, 1917, with the avowed intention "to ease the 
situation of the American trader and correspondent abroad, con- 
sistent with the objects of military censorship." '^'^ On July 18, 
the censorship was extended to all Atlantic cables, and new regu- 
lations were promulgated, effective on that date.'^® 

Thus far the censorship was carried on solely by virtue of the 
President's orders. However, the Trading with the Enemy Act 
of October 6, 1917,'^^ included among its provisions one author- 
izing the President to cause all communications to and from for- 
eign countries by mail, cable, radio, or any other means, to be cen- 
sored under such rules and regulations as he might establish. ^° 

75 Official Bulletin, Jan. 31, 1918. 

76 IMd., July 18, 1917. This order was supplemented by a similar order 
of Sept. 26, 1918, extending the restrictions to messages on or near the 
Mexican border. Ihid., Sept. 27, 1918. 

77 lUd., June 5, 1917. 

78 Ihid., July 18, July 25, 1917. Up to that time, the cable censorship 
had extended only to South and Central America, Mexico, and the Orient. 

79 Public No. 91, 65 Cong., in Wigmore, op. cit., 543-561. 

80 Sec. 3, CI. (d). 



201] POWERS OF POLICE CONTROL 201 

President Wilson thereupon, by executive order based upon this 
act, created a Censorship Board, composed of representatives of 
the Secretaries of War and Navy, the Postmaster General, the 
War Trade Board, and the chairman of the Committee on Public 
Information, to control all such communications.^^ 

Under the direction of this board, the cable censorship was 
tightened, and a great many persons, including some American 
citizens, were denied the use of the cables altogether.®^ The 
work of the chief cable censor was still continued, however, new 
regulations being issued by him in the spring of 1918.®^ 
The censorship thus exercised seemed to be based in part on stat- 
utory authority, but chiefly on the authority of the President 
alone, acting in pursuance of his powers as Commander-in-Chief. 

In addition to giving the President complete power to censor 
all communications of every sort between this country and a 
foreign country, the Trading with the Enemy Act vested him 
with considerable power over the foreign language press of the 
United States, requiring these newspapers, except by license 
from the President, to file before publication a "true and com- 
plete ' ' translation of ' ' any news item, editorial, or other printed 
matter, respecting the Government of the United States, or of 
any nation engaged in the present war, its policies, international 
relations, the state or conduct of the war, or any matter relating 
thereto. ' ' ®* Provisions of the Espionage Act had likewise de- 
clared non-mailable every sort of publication "containing any 
matter advocating or urging treason, insurrection, or forcible 
resistance to any law of the United States. ' ' ®^ 

To the executive authorities charged with the enforcement of 
these provisions was left the exact determination of what was to 
constitute such non-mailable matter, and Postmaster General 
Burleson, in a public statement, defined the position of the Ad- 
ministration as follows : ' ' We shall take care not to let criticism 
which is personally or politically offensive to the administration 

81 Executive order of Oet. 12, 1917. Official Bulletin, Oct. 15, 1917. 

82 See N. Y. Times, Nov. 9, 1917. 

83 Official Bulletin, May 21, 1918. The cable censorship ceased July 23, 
1919, by order of the President. N. Y. Times Current Hist, Mag., X, 410 
(Sept., 1919). 

84 Sec. 19. 

85 Act of June 15, 1917 (Title XII, Sec. 2). 



202 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [202 

affect our action. But if newspapers go so far as to impugn the 
motives of the Government and thus encourage insubordination, 
they will be dealt with severely. For instance, papers may not 
say that the Government is controlled by Wall Street or muni- 
tion manufacturers, or any other special interests. Publication 
of any news calculated to urge the people to violate law would 
be considered grounds for drastic action. We will not tolerate 
campaigns against conscription, enlistments, sale of securities, 
or revenue collections. We will not permit the publication or 
circulation of anything hampering the war's prosecution or at- 
tacking improperly our allies. ' ' ^^ 

The President's powers of censorship appear therefore to be 
based in partt)n his constitutional position as Chief Executive 
and Commander-in-Chief, in part on definite statutory authority. 
Through his power to interpret and enforce the statute law, the 
President is enabled to exercise a considerable measure of con- 
trol over the expression of opinion in time of war. When to this 
is added the powers of censorship and control exercised by the 
authority of the President alone, not only during the recent war 
but previously as well, the President 's power in this regard would 
seem to be limited in practise only by the extent of the neces- 
sity, as judged by him. 



86 Statement of Oct. 9, 1917, quoted in War Cyclopedia (1st ed.), 163. 
This was supplemented by another statement to the same effect, issued in a 
letter of Oct. 22, 1917. See text in Willoughby, Government Organisation 
in War Time and After, 48-49. 



CHAPTER XII 

POWERS OF ECONOMIC CONTROL 

' ' This is a war of resources no less than of men, perhaps even 
more than of men," said President Wilson during the course of 
the recent war;^ and the extent to which the economic resources 
of the belligerent nations were placed under government con- 
trol is one of the most striking and unprecedented features of 
the World War. 

In the United States, it has become a well-established principle 
of constitutional law that businesses affected with a public inter- 
est are subject to government regulation, even in time of peace. ^ 
It has likewise been long recognized that the property rights of 
private individuals must yield in time of war to the military 
needs of the nation. Thus, during the Revolution, dictatorial 
powers were at various times conferred upon General Washing- 
ton ' ' to take, wherever he may be, whatever he may want for the 
use of the army, if the inhabitants will not sell it, allowing a 
reasonable price for the same. ' ' ^ There was some attempt at 
price-fixing during the same war,* and there were many resolu- 

1 Statement on taking over the railroads, Dec. 26, 1917. Official Bulle- 
tin, Dec. 27, 1917. 

2 German Alliance Insurance Company v. Lewis, 233 IT. S., 389, 411 
(1914). 

sEesolve of Dec. 27, 1776. See also resolves of Sept. 17 and Nov. 14, 
1777. Jour. Cont. Cong., VI, 1045; VIII, 752; IX, 905. 

4 A resolution of Nov. 22, 1777, recommended that the states enact 
price-fixing legislation, "in order to introduce immediate economy in the 
public expense, the spirit of sharping and extortion, and the rapid and 
excessive rise of every commodity being confined within no bounds; " and a 
resolution of Jan. 15, 1778, empowered the Board of War to limit the 
prices to be given for wheat and flour. The repeal of all such price-fixing 
legislation was recommended June 4, 1778, the resolution declaring that 
"it hath been found by Experience that Limitations upon the Prices of 
Commodities are not only ineffectual for the Purposes proposed, but like- 

203 



204 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [204 

tions recommending and authorizing the ''impressment" of sup- 
plies of all kinds needed for the army, including "wheat in 
the sheaf. ' ' ^ 

The entry of the United States into the World War, requiring 
the mobilization, not only of the military and naval forces of 
the nation, but of its every economic resource as well, emphasiz- 
ed the fact that in time of war the constitutional principle of 
government regulation and control may be extended to cover 
practically every enterprise and activity within the country; 
that "the extraordinary circumstances of war may bring par- 
ticular businesses and enterprises clearly into the category of 
those which are affected with a public interest and which de- 
mand immediate and thoroughgoing public regulation. ' ' ^ 

Control of Food and Fuel. From the first, it was recognized 
that the great contribution of the United States to the winning 
of the war must be the supplying of food for itself and the Allies. 
Hence a policy of food control was entered upon, centered al- 
most entirely in the hands of the President. Immediately after 
the declaration of a state of war with Germany, Herbert Hoover 
was selected (on April 7) by the Council of National Defense as 
chairman of its committee on food supply and prices,^ and on 
May 19 his appointment as Food Administrator and a program 
of food administration were announced by President Wilson,^ 
even tho the administration bills vesting the President with pow- 
ers of food and fuel control had not yet been acted upon by 
Congress.^ President Wilson followed this action with a letter 
to Mr. Hoover on June 12, 1917, in which he stated that the sav- 
ing of food and the elimination of waste admitted of no further 
delay, and therefore, without waiting for the legislation which he 
considered desirable, he vested Mr. Hoover with "full authority 
to undertake any steps necessary" for the proper organization 

wise productive of very evil Consequences to the great Detriment of the 
public Service and grievous Oppression of Individuals." Ibid., IX, 957; 
X, 55; XI, 569, 570. 

5 Ibid., Ill, 323; VI, 1001; VIII, 741; IX, 774-775, 962, 1043; XX, 
516, 598. 

6 Statement of ex-Justice Hughes, quoted in War Cyclopedia (lsted.),96, 

7 Pol. Soi. Quar., XXXII, Supp., 25. 

8 N. Y. Times, May 20, 1917. 

9 These administration bills were introduced into Congress the latter part, 
of April. 



205] POWERS OF ECONOMIC CONTROL 205 

and stimulation of efforts along these lines." Accordingly, 
conservation campaigns were organized throughout the country, 
voluntary workers were enrolled, and a set of food rules were 
promulgated and issued," all on the authority of the President 
alone. 

Finally, in August, 1917, Congress passed the Food and Fuel 
Control Act,^2 vesting the President with complete control over 
the food and fuel resources of the nation. He was empowered, 
whenever he should deem it essential, to license the importation, 
exportation, manufacture, storage, and distribution of food, 
feed, fertilizer, and fuel, and to prescribe regulations governing 
the businesses so licensed; to fix prices of such food and fuel; 
to requisition such food, fuel, and other supplies, or factories or 
mines in which these are produced, "whenever he shall find it 
necessary;" to buy and sell wheat, flour, meal, beans, and po- 
tatoes, at prices to be fixed by him; to set a minimum guaran- 
teed price for wheat (to be not less than $2 per bushel) ; to regu- 
late the operations of boards of trade ; to limit, regulate, or pro- 
hibit the use of foodstuffs in the production of beverages, wheth- 
er alcoholic or non-alcoholic; and, finally, "to make such regu- 
lations and to issue such orders as are essential effectively to 
carry out the provisions of this Act." 

Under authority of these provisions. President Wilson on Au- 
gust 10, 1917 (the day of the passage of the act), again formally 
announced the appointment of Herbert Hoover as Food Admin- 
istrator ^^ (altho Mr. Hoover had been acting as such by execu- 
tive authority since May 19), and turned over to him the immed- 
iate administration of the act. Steps were also taken at once to 
exercise the powers conferred by the act and to place the food 
resources of the country under a more thoro system of control. 
Through a series of proclamations, the President required li- 
censes of practically every sort of business connected with the 
production and distribution of food, including elevators and 

^oOfficidl Bulletin, June 18, 1917. For statement by Mr. Hoover con- 
cerning the aims of the Food Administration, see Hid., June 20, 1917. 

11 Ibid., July 7, 1917. These were as yet, however, only for voluntary 
observance. 

12 Act of Aug. 10, 1917. Public No. 41, 65 Cong., in Wigmore, Source- 
Book of Military Law and War-Time Legislation, 504-516. 

13 Official Bulletin, Aug. 11, 1917. 



206 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [206 

mills for the storage or distribution of wheat and rye; the im- 
portation, manufacture, and refining of sugar, sirups, and mo- 
lasses; the importation, manufacture, storage, and distribution 
of more than twenty staple foods ; the dealing in bread, bakery 
products, and green coffee; the arsenic, ammonia, and fertilizer 
industries; the trading in farm equipment; stockyards and con- 
nected businesses.^* 

Besides inaugurating this system of regulation through li- 
censing, the President empowered the Food Administrator to lim- 
it profits,^^ and to requisition such foods and feeds, with their 
storage facilities, as he might deem necessary "for any public 
use connected with the common defense, other than the support 
of the Army or the maintenance of the Navy. ' ' ^^ He guaran- 
teed a minimum price for the wheat crops of 1918 and 1919," 
and ordered the organization of a Grain Corporation to purchase, 
store, and sell this wheat, and make the guarantee effective.^® 
He limited the alcoholic content of malt and vinous liquors to 
2.75 per cent, and finally brought about total prohibition by 
forbidding the use of any foodstuffs in the production of such 
malt liquors, whether alcoholic or non-alcoholic.^^ 

Altho most of these war-time restrictions were removed within 
a few months after the signing of the armistice,^" some of them 
were again revived and enforced about a year after that event, 
when the powers of the Food Administration were transferred 

1* TJ. S. Stats., 65 Cong., 1 Sess., Procs., 45, 52; ihid., 2 Sess., 69, 92, 98, 
107, 131, 133, 158, 202, 222; Official Bulletin, Oct. 11, 1917, Jan. 14, May 
15, 1918; N. Y. Times, Oct. 10, Nov. 13, 1917. 

15 Executive order of Nov. 23, 1917. N. ¥. Times, Dee. 1, 1917. 

16 Executive order of Oct. 23, 1917. Official Bulletin, Nov. 1, 1917. 

17 Proclamations of Feb. 21 and Sept. 2, 1918. U. S. Stats., 65 Cong., 
2 Sess., Procs., 105, 200. 

18 Executive orders of Aug. 14, 1917 and June 23, 1918. Emergency 
Legislation, 174-176; Official Bulletin, June 24, 1918. 

19 Proclamations of Dec. 8, 1917 and Sept. 16, 1918. U. S. Stats., 65 
Cong., 2 Sess., Procs., 84, 204. These must, of course, be distinguished 
from the War-Time Prohibition Act, passed by Congress. 

20 Most of the licensing requirements were canceled by the proclamations 
of Jan. 7, Jan. 25, and Feb. 11, 1919. U. S. Stats., 65 Cong., 3 Sess., Proes., 
275, 285, 287. The prohibition regulations were modified so as to permit 
the manufacture of near-beer and other non-intoxicating beverages, by the 
proclamations of Jan, 30 and Mar. 4, 1919. Ibid., 286, 293. 



207] POWERS OF ECONOMIC CONTROL 207 

by executive order to the Attorney General in an attempt to 
avert the sugar famine and to lower the high cost of living.^^ 

Similar steps to control the fuel resources of the nation were 
taken by the President under the provisions of the Food and 
Fuel Control Act. Doctor Harry A. Garfield was appointed Fuel 
Administrator by executive order of August 23, 1917,22 ^^d em- 
powered to carry out the fuel provisions of the act. He ex- 
plained the purposes of the Fuel Administration to be ''to se- 
cure the largest possible production of fuel at prices just to the 
producer and reasonable to the consumer. ' ' ^^ 

As with regard to the food resources, so the President likewise 
inaugurated a system of licenses for controlling the distribu- 
tion of coal and coke and the various other fuel products, such 
as fuel oil and natural gas f^ and fixed the prices to be charged.^^ 
The Fuel Administrator, with the approval of the President, 
issued several very drastic orders for the purpose of conserving 
fuel, such as those for the elimination of electric advertising signs 
and for certain "lightless nights;" ^^ and the sensational order 
of January 17, 1918, suspending the operation of practically all 
industry east of the Mississippi River for a period of five days 
beginning January 18, and making the following nine Mondays 
''heatless days." This order was promulgated in spite of pro- 
tests from every part of the country, opinions that the order 
exceeded the authority of the Executive, and an official resolu- 
tion of the Senate asking for delay and an explanation,^'^ — all 
of which illustrates clearly the vast war-time power of the Presi- 
dent. 

As with regard to the powers of the Food Administration, so 
those of the Fuel Administration were revived by the President 
after the signing of the armistice and the virtual ending of the 
war, in order to meet a particular situation. After having pro- 
nounced the coal strike called for November 1, 1919, unjustifiable 

21 N. Y. Times, Nov. 22, 1919. 
22 Official Bulletin, Aug. 24, 1917. 
2^IMd., Sept. 6, 1917. 

24 Proclamations of Jan. 31, Mar. 15, and Sept. 16, 1918. U. S. Stats., 
65 Cong., 2 Sess., Procs., 99, 113, 205. 

25 Official Bulletin, Aug. 24, Sept. 6, Oct. 29, 1917. 

26 iMd., Nov. 14, Dee. 15, 1917. 

27 See N. ¥. Times, Jan. 17, Jan. 18, 1918. 



208 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [208 

and unlawful, and having requested, without success, that the 
strike be called off,^^ President Wilson, by executive order of 
October 30, restored the war-time powers of Fuel Administrator 
Garfield and gave him full authority to use these powers in ap- 
plying such regulations as he should deem necessary to avert a 
coal famine. Accordingly, the priority list of May 25, 1918, 
was restored, the Railroad Administration was vested with pow- 
er to divert coal shipments, the Department of Justice was charg- 
ed with the enforcement of the maximum price list, drastic re- 
strictions on the use of coal by ''non-essential" industries were 
put into effect, railroad service was curtailed, and rigid regula- 
tions were applied concerning the distribution of coal to con- 
sumers, until the strike was called off December 10.^'' 

It' should be noted that all these restrictions and regulations 
concerning both the food and fuel resources, were established by 
order of the President, even after the signing of the armistice, 
by virtue of the "war powers" conferred upon him by the Food 
and Fuel Control Act, a war measure which had not yet expir- 
ed. 

Control of Trade and Industry. Congress, by virtue of its 
power over interstate and foreign commerce,^" may make such 
regulations with regard to both foreign and domestic commerce 
as it may deem necessary or helpful towards the crippling of an 
enemy and the success of a war. It chose to exercise this power 
during the events leading up to the War of 1812 and during the 
war itself by passing several embargo and non-intercourse acts.^^ 
During the Civil War, Congress exercised the same power by 
forbidding all intercourse between citizens of the loyal states 
and of those in rebellion, except by license from the President.^^ 

28 See President Wilson's statement concerning the strike. N. Y. Times, 
Oct. 26, 1919. 

23 Ibid., Nov. 1, Dec. 2, Dec. 9, Dec. 11, 1919. The restrictions were 
only gradually lifted after the calling off of the strike. 

30 Constitution, Art. I, See. 8, CI. 3. 

31 Acts of Mar. 1 and June 28, 1809; Apr. 4, Apr. 14, and July 6, 1812; 
Dec. 17, 1813; Feb. 4, 1815. Annals of Cong., 10 Cong., 2 Sess., App., 
1824; 11 Cong., II, App., 2508; 12 Cong., II, App^262, 2269, 2354; 13 
Cong., II, App., 2781; 13 Cong., 3 Sess., App., 1899. [JRegarding the purpose 
of these as war measures, see Writings of James Madison, VIII, 185-186, 
n., 188? 

32 Act of July 13, 1861. 12 Stat, at L., 255, 257 (Sec. 5). President 



209] POWERS OF ECONOMIC CONTROL 209 

Even without authority from Congress, however, the Presi- 
dent is also vested with considerable power in regard to the con- 
trol of trade in time of war. By virtue of his position as Com- 
mander-in-Chief, he may declare a blockade of the enemy's 
ports,^^ and thus cut off completely both the import and export 
trade with the enemy nation. President Polk exercised this 
power by ordering a blockade of the Mexican ports in 1846,^* 
President Lincoln of the Southern ports in 1861,^^ and President 
McKinley of certain Cuban ports in 1898.^^ It has also been held 
that the President may, at least in the absence of congressional 
action to the contrary, permit a limited commercial intercourse 
with the enemy in time of war, and impose such conditions as 
he sees fit.^'^ 

During the recent war with Germany and Austria-Hungary, 
President Wilson never declared a blockade of those countries, 
as he might have done, for the reason that such action would not 
have cut off the supplies slipping through neutral countries. 
Since the United States was practically the only source of supply 
for these neutral countries, the problem was more effectively 
solved by giving the President blanket authority to regulate 
the foreign trade of the United States. Under the provisions of 
the Espionage Act, the President was empowered, whenever in 
his opinion the public safety should require, to forbid the ex- 
portation of any articles to any country except under such regu- 
lations as he might choose to make.^^ Under the Trading with 
the Enemy Act, he was given similar power with respect to im- 
ports.^^ 

Lincoln, by order of Feb. 28, 1862, permitted such intercourse under rules 
and regulations prescribed by the Secretary of the Treasury. WorTcs of 
Abraham Lincoln, (Federal ed.), V, 438. The removal of the restrictions 
so placed was begun immediately after the cessation of hostilities (Apr. 
29, 1865), and completed by June 24, 1865. Dunning, Beconstruction : 
Political and Economic, 27. 

^^ Prise Cases, 2 Black, 635 (1862). 

34 Eichardson, Messages and Papers of the Presidents, IV, 492, 493. 

35 Proclamations of Apr. 19 and 27, 1861. Ibid., VI, 14, 15. 

36 Proclamations of Apr. 22 and June 27, 1898. Ibid., X, 202, 206. 

^T Hamilton v. Dillin, 21 Wall., 73, 87 (1874) ; cf. Glenn, The Army and 
the Law, 69-70. 

38 Act of June 15, 1917. Public No. 24, 65 Cong. (Title VII), in 
Wigmore, op. cit., 493. 

39 Act of Oct. 6, 1917. Public No. 91, 65 Cong. (See. 11), in Wigmore, 
op. cit., 557. 



210 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [210 

By virtue of this authority, President Wilson at various times 
during the war proclaimed an embargo on long lists of articles,^" 
and prohibited the importation of other articles/^ except under a 
system of licenses which he placed under the supervision of the 
War Trade Board.*^ In this way he was able to exercise com- 
plete control over the foreign trade of the United States during 
the period of the war, and thus to prevent supplies from reach- 
ing the enemy, either directly or through neutral channels. 

In time of war the President also exercises a large measure 
of control over business within the United States, his power in 
that regard being apparently based largely on statutory provi- 
sions, but also being exercised in some instances by virtue of no 
specific authority. For example, President Wilson immediately 
upon the declaration of a state of war with Germany and on later 
occasions placed restrictions upon the German insurance compan- 
ies doing business in the United States and made regulations 
with regard to German letters patent, his action in each case be- 
ing based, not on statute, but solely on 'Uhe authority vested in 
me as such." *^ 

Considerable power was vested in the President by the Na- 
tional Defense Act of 1916, which authorized him in time of war 
or when war is imminent, to order any individual or firm having 
the facilities to comply, to furnish supplies or equipment for 
the Army in preference to any other commitments, at prices 
named by him; and in case of default, to seize and operate the 
plant.** Similar power to requisition shipyards and factories for 
the manufacture of supplies needed for the Navy was vested in 
the President by the Naval Emergency Fund Act of 1917.*^ 

40 Proclamations of July 9, Aug. 27, Sept. 7, Nov. 28, 1917; Feb. 14, 
1918. V. S. Stats., 65 Cong., 1 Sess., Proes., 39, 47, 50; ibid., 2 Sess., 
76, 102. 

41 Proclamations of Nov. 28, 1917; Feb. 14, 1918. Ibid., 2 Sess., 77, 103, 

42 Created under authority of the Trading with the Enemy Act, and com- 
posed of representatives of the Secretaries of State, Treasury, Agriculture, 
and Commerce, and of the Food Administrator, the Shipping Board, and the 
War Industries Board. See executive orders of Oct. 12, 1917 and Aug. 20, 
1918. Official Bulletin, Oct. 15, 1917, Sept. 3, 1918. 

43 Proclamations of Apr. 6, May 24, and July 13, 1917. U. S. Stats., 
65 Cong., 1 Sess., Procs., 10, 25, 40. 

44 Act of June 3, 1916. Public No. 85, 64 Cong. (See. 120), in Wigmore, 
op. cit., 439-440. 

45 Act of Mar. 4, 1917. Public No. 391, 64 Cong. Ibid., 458. 



211] POWERS OF ECONOMIC CONTROL 211 

On July 28, 1917, the War Industries Board was created by 
the Council of National Defense, with the approval of the Presi- 
dent, to serve as ''a clearing house for the war industry needs 
of the Government ; " *^ and in March, 1918, its functions were 
by a mere letter of the President continued, expanded, and vest- 
ed almost exclusively in the chairman, Bernard M. Baruch.*^ Fi- 
nally, by executive order of May 28, 1918, the President formally 
made the War Industries Board an independent administrative 
agencj^ acting directly under his authority, and thereby created 
what one writer says was "in effect an Industries Administra- 
tion analogous in all essential respects to the Food and Fuel Ad- 
ministrations previously created. . . The Board derived its 
legal powers directly from the President. It therefore had the 
power to exercise, within its field, all the powers of the President 
over industry entrusted to him by statute or possessed by him in 

virtue of his position of head of the armed forces of the Na- 
tion. "^^ 

Under the direction of its chairman and upon the sole author- 
ity of the President, the board assumed a very large control of 
the industrial resources of the nation. It acted as an agency for 
centralizing the war demands of the several government services ; 
purchased supplies for the Allies ; created new facilities and new 
sources of supply; determined priorities of production and de- 
livery; fixed prices; and sought to secure the elimination of 
waste and unnecessary effort, and the securing of economy of 
time and materials. The chairman was in general required to 
act as the "general eye of all supply departments in the field 
of industry, " to be a sort of ' ' industrial chief of staff. ' ' 

While the various orders and decisions of the board were 
legally only "requests," they were backed by the President's 
powers to requisition factories, to withhold fuel and transporta- 
tion facilities, and in other ways to compel compliance ; so that 

46 War Cyclopedia (1st ed.), 293. 

*7 See President Wilson's letter of Mar. 4, 1918, to Mr. Baruch, outlin- 
ing the functions of the board and the duty of the chairman. Official Bul- 
letin, Mar. 31, 1918. 

48 Willoughby, Government Organisation in War Time and After, 76-77; 
see also 0. N. Hitchcock, "The War Industries Board; Its Development, 
Organization and Functions," in Jour. Pol. Econ., XXVI, 545-565 (June, 
1918), esp. 547, 563. 



212 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [212 

the War Industries Board was well described as being able to 
"mold the country's industrial system almost as it will," and as 
' ' a notable demonstration of the power of war to force concert of 
effort and collective planning with centralized responsibility. ' ' *^ 
Through these various means, the President was enabled to ex- 
ercise a complete control over all businesses having any relation 
to war needs, which in modern times includes practically the en- 
tire business life of the nation. 

Control of Property. The President likewise has considerable 
power in time of war with regard to private property. In the 
United States it has been held that a state of war justifies the 
seizure and confiscation of enemy property found within the 
borders of the country,^° in accordance with which theory the 
Confiscation Acts of the Civil War ^^ were passed, providing for 
the seizure of rebel property under certain conditions. The gen- 
eral practise of nations has, however, brought about the modern 
rule of international law that such enemy property is no longer 
subject to confiscation, but only to sequestration for the period of 
the war.^2 

The power of such sequestration might be presumed to rest 
with the President by virtue of his executive authority, without 
any further statutory authorization. All doubt was removed, 
however, during the recent war, by inserting in the Trading with 
the Enemy Act provisions which empowered the President, 
through the Alien Property Custodian created by that act, to 
take over and administer for the period of the war such enemy 
property as he might require. ^^ President Wilson carried out 
these powers through various executive orders, which fixed the 

49 C. N. Hitchcock, op. cit., 565, 566. 

50 Brown v. United States, 8 Or., 110, 122 (1814); Miller v. United 
States, 11 Wall., 268, 305 (1870) ; cf. Glenn, The Army and the Law, 
112, 115. 

51 Acts of Aug. 6, 1861, July 17, 1862, and Mar. 3, 1863. 12 Stat, at 
L., 319, 589, 820. 

52 Lawrence, Principles of International Law, 424-429. 

53 See esp. Sees. 6, 7. Wigmore, op. cit., 548-552. The seizure of prop- 
erty by the Alien Property Custodian could not be enjoined by the courts, 
his decisions as to what constituted enemy character being held to be 
unreviewable preceding the transfer of the property. Salamandra Inswr- 
ance Company v. New Yorh Life Insurance Company, 254 Fed. E«p., 852 
(1918). 



213] POWERS OF ECONOMIC CONTROL 213 

salary of the Alien Property Custodian and defined his powers 
and duties, and which entrusted him with the management, ad- 
ministration, and disposition of enemy property of all kinds, 
including such things as real estate, personal property, seats on 
stock exchanges, and businesses of all descriptions.^* In short, 
the Alien Property Custodian was authorized "to step into the 
shoes of the enemy and exercise all the rights and powers with 
respect thereto which the enemy could exercise if no state of war 
existed. ' ' ^^ 

Other powers with regard to the control of property were also 
vested in the President. Several acts of Congress authorized the 
taking of land for military or naval purposes,^^ under which 
President Wilson seized such property as the Jamestown Exposi- 
tion site and large tracts of land in Maryland, and ordered the 
residents to vacate immediately, the compensation to be deter- 
mined later." Finally, by the Act of May 16, 1918,^« the Presi- 
dent was empowered during the war to seize private property of 
any kind, whether real estate, buildings, furnishings, or im- 
provements, " as he may determine to be necessary for the prop- 
er conduct of the existing war," with compensation to be fixed 
later. Altho under this act nothing was exempt from being 
commandeered, its chief purpose was to facilitate the seizure of 
housing for war workers and government offices,^^ in accordance 1 
with which the President created a Housing Corporation as an 
agency through which the Secretary of Labor might carry out 
the provisions of the act.''" 

By these means the President was enabled to exercise a com- 

54 Executive orders of Oct. 29, 1917; Feb. 26, Apr. 2, July 15, July 16, 
Aug. 29, Sept 12, Sept. 13, Nov. 12, 1918. Official Bulletin, Oct. 31, 1917; 
Mar. 2, July 18, July 23, Aug. 31, Sept. 17, Sept. 20, 1918 ; Jan. 3, 1919. 

55 Statement of the Alien Property Custodian (A. Mitchell Palmer), in 
Official Bulletin, Mar. 2, 1918. 

56 Acts of June 15 and Oct. 6, 1917; Apr. 26, 1918. Public Nos. 23, 
64, 140, 65 Cong. 

57 Proclamations of June 28, Oct. 16, Dec. 14, 1917; June 10, 1918. 
U. S. Stats., 65 Cong., 1 Sess., Procs., 30; ihid., 2 Sess., 63, 87, 146. 

58 Public No. 149, 65 Cong. 

59 See statements of Assistant Secretary of War Crowell, in N. Y. Times, 
Mar. 21, Mar. 22, 1918. 

60 Executive order of Oct. 29, 1918. Official U. S. Bulletin, Jan. 21, 
1919. 



214 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [214 

plete control of all private property within the United States, 
whose use might in his opinion benefit the enemy or which he 
might consider essential to the war needs of the country. 

Control of Transportation and Communication. The import- 
ance of the transportation and communication services in the suc- 
cessful prosecution of war is perhaps second only to that of the 
actual fighting service. The close relation between the operation 
of these lines of communication and the military operations, and 
the necessity of securing their absolute control by the military 
authorities, in order to insure the regular and systematic trans- 
portation of troops and supplies, were recognized quite early 
during the Civil War. Congress, by Act of January 31, 1862,®^ 
authorized the President, when in his judgment the public safety 
should require it, to take possession of any or all telegraph and 
railroad lines within the United States, together with all their 
equipment and personnel; to prescribe rules and regulations for 
the use of these lines ; and to place them under military control. 

Accordingly, President Lincoln, by order of February 11, 
1862, appointed D. C. McCallum as Military Director and Su- 
perintendent of Railroads, giving him full authority to take pos- 
session of the railroads and to do " all things that may be neces- 
sary and proper" for the transportation of troops and sup- 
plies ;®^ and on May 25, 1862, the President took formal military 
possession of all the railroads in the United States.**^ More 
than 2,000 miles of railroad were operated, mostly in Southern 
or border states,*'* which were turned back to their owners under 
certain regulations on August 8, 1865.*^^ 

During the first months of the recent war, an attempt was 
made to meet the transportation needs of the nation by leaving 
the operation of the railroads under private control, but as one 
system under the the direction of the Railroads War Board, 
a special committee of the American Railway Association, 

61 12 Stat, at L., 334. By joint resolution of July 14, 1862, this act was 
declared not to authorize the President to engage in any work of railroad 
construction. Ibid., 625. 

62 Richardson, Messages and Papers of the Presidents, VI, 101. 

esiMd., 113. See also orders of May 28 and July 11, 1862. IMd., 
113, 116. 

^iCong. ^Record, 65 Cong., 2 Sess., 2556, 6923 (Feb. 19, May 13, 1918). 

^^ Hid., 2556; Fleming, Docwmentary History of Beoonstruction, I, 205- 
206. 



215] POWERS OF ECONOMIC CONTROL 215 

cooperating with Mr. Daniel Willard, chairman of the Trans- 
portation and Communication Committee of the Council of Na- 
tional Defense.^*^ This did not prove satisfactory, however, and 
before the end of 1917, suggestions were made from authoritative : 
sources that the President should take control of the railroads; 
and operate them for the period of the war,^^ authority for which 
he already possessed by virtue of the Army Appropriations Act 
of 1916.«8 

Acting under this authority. President Wilson, by proclama- 
tion of December 26, 1917,®^ took possession of all the rail and 
water transportation systems in the United States (excepting 
street-car and interurban lines ^°), and vested their administra- 
tion in Secretary of the Treasury McAdoo, who was designated 
Director General of Railroads. Later the President confirmed 
and continued the authority of Mr. McAdoo as Director Gen- 
eral,'^^ under the provisions of the Railway Control Act,^^ passed 
by Congress in order that the President's authority might be 
complete and undoubted.'^^ This act confirmed the President's 
power to take over, control, and operate the railroads under the 
act of 1916, authorized him to compensate the owners and initiate 
rates, and provided that he might relinquish such control at his 
discretion, but that he might in no case exercise it longer than 
one year and nine months after the declaration of peace. 

Acting under the authority so conferred upon him by the 

66 War Cyclopedia (1st ed.), 229, 273. 

67 See report of Interstate Commeic© Conmiissioii, in N. ¥. Times, Dec. 
6, 1917. 

68 Act of Aug. 29, 1916. U. 8. Stats., 64 Cong., 1 Sess., 619, 645. 

69 V. S. Stats., 65 Cong., 2 Sess., Procs., 89. 

70 By act of Apr. 22, 1918, the President was also authorized to take over 
and operate such of these as might be necessary for the transportation of the 
employees at the shipyards and plants. Official Bulletin, May 7, 1918. 

71 Proclamation of Mar. 29, 1918. U. S. Stats., 65 Cong., 2 Sess., 
Procs., 119. 

72 Act of Mar. 21, 1918. Public No. 107, 65 Cong., in Wigmore, op. cit., 
575-583. 

73 Senator Cummins and others held, for example, that the President 's 
scheme of compensation to the owners required additional legislation, and 
it was doubted by many whether he had the power to fix rates under the 
act of 1916, That the President doubted his own authority on some of 
these points is indicated by his statement that he intended to recommend 
additional legislation. See N. Y. Times, Dee. 27, 1917. 



216 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [216 

President, Director General McAdoo immediately assumed active 
charge, unified the railroads of the country into one system, 
made regulations concerning their operation, named his subor- 
dinate officers, fixed both interstate and intrastate rates,'^* in- 
creased the wages of employees, provided for the adjustment of 
labor disputes, and in general exercised complete control,''^ not 
only of the railroads, but also of the coastwise steamship lines, 
ship canals, and express companies, control of which had later 
been taken over by the President/'' 

Upon the resignation of Mr. McAdoo a short time after the 
armistice, the President appointed Walker D, Hines to succeed 
him as Director General,'^^ and continued through him to exer- 
cise control of the transportation systems of the United States 
with the view of rendering adequate service at a reasonable 
cost.^^ In his message to Congress, May 20, 1919, President 
Wilson announced his intention to return the railroads to their 
owners at the end of the year,''^ but no legislation on the subject 
of future railroad control having by that time been enacted by 
Congress, he postponed the date of return, setting it by formal 
proclamation at March 1, 1920.^° Congress having finally en- 
acted railroad legislation by that date,^^ the railroads were then 
returned as promised. Thus, for more than two years, more than 
half of that time after the virtual end of the war, the President 
exercised complete control of the transportation systems of the 
country, a control which he might have extended considerably 

74 The right to fix intrastate as well as interstate rates was upheld in 
Northern Pacific Eailway Company v. North Dakota, 250 U. S., 135 (1919). 

75 A considerable number of orders issued by the Director General are 
listed in Emery and Williams, Governmental War Agencies Affecting Busi- 
ness, 44-49. 

.76 Proclamations of Apr. 11, July 22, Nov. 16, 1918, U. S. Stats., 65 
Cong., 2 Sess., Procs., 125, 164, 245. 

77 Proclamation of Jan. 10, 1919. lUd., 3 Sess., 278. 

78 ''Until the signing of the armistice the Government's first railroad 
duty was to run the railroads to win the war, but now that the war is won, 
the Government's railroad job is to render an adequate and convenient 
transportation service at reasonable cost." Statement of Mr. Hines on 
assuming office, Jan. 11, 1919. Official U. S. Bulletin, Jan. 13, 1919. 

79 See his message in United States Bulletin, May 26, 1919. 

80 Proclamation of Dec. 24, 1919. N. Y. Times, Dec. 25, 1919. 

81 The Esch-Cummins Eailroad bill was signed by the President Feb. 28, 
1920. Hid., Feb. 29, Mar. 1, 1920. 



217] POWERS OF ECONOMIC CONTROL 217 

longer, on account of the delay in the ratification of the peace 
treaty and the formal declaration of peace. 

With regard to shipping, a large measure of control was ex- 
ercised by the President during the recent war through the Ship- 
ping Board and the Emergency Fleet Corporation, created by 
the Act of September 7, 1916.^^ Acting under the direction of 
the President, this board and this corporation had as their war- 
time task the providing of an adequate merchant marine to meet 
the extraordinary transportation demands of the war and the 
losses from submarine attacks. The Shipping Board controlled 
directly the operation of all American ocean vessels; and by 
means of authority delegated to it by executive order, requisi- 
tioned all American ships completed or building during the war, 
fixed freight rates, and determined terminal charges.^^ The 
Emergency Fleet Corporation, acting as the construction agency 
of the Shipping Board (and, through it, of the President), added 
a vast amount of tonnage to the shipping in use during the war.^* 

Additional shipping was secured through the seizure of enemy 
and neutral vessels lying within United States ports at the out- 
break of the war. International law and practise allow a bel- 
ligerent to requisition and utilize such vessels, if needed for war 
purposes,^^ and the presumed authority of the President to act 
under this rule was further strengthened by the Joint Eesolution 
of May 12, 1917,^^ expressly authorizing him to take over enemy 
vessels for use and operation during the war, and by a provision 
in the Emergency Shipping Fund Act of June 1, 1917,^^ em- 
powering him similarly to requisition any vessel within the jur- 
isdiction of the United States. Acting therefore under author- 
ity both of international law and of statute. President Wilson ; 
seized the German and Austrian vessels interned in the ports of ' 

82 Public No. 260, 64 Cong., in Wigmore, op. cit., 447-454; amended by 
Act of July 15, 1918. Public No. 198, 65 Cong., ibid., 455-457. 

83 See, for example, its announcement requisitioning on Oct. 15, 1917, all 
American vessels of not less than 2500 tons capacity. Official Bulletin, 
Oct. 13, 1917. See also executive orders of June 18 and Dec. 3, 1918. 
Ibid., June 20, Dec. 16, 1918. 

84 Figures for the early months of the war may be found in War Cyclo- 
pedia (1st ed.), 253. 

85 Lawrence, Principles of International Law, 456, 626-628. 

86 Public Ees. No. 2, 65 Cong., in Emergency Legislation, 18, 

87 Public No. 23, 65 Cong., in Wigmore, op. cit,, 482-484. 



218 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [218 

the United States,^^ and likewise requisitioned the Dutch ships 
lying idle within its jurisdiction.^^ The docks and terminal 
equipment of the German steamship companies were also taken 
Qygj. 90 under express statutory authority,^^ the compensation 
therefor being determined by the President after the signing of 
the armistice.^^ 

It has already been noted that the Act of Congress authoriz- 
ing military control of the railroads during the Civil "War, also 
authorized the President to assume such control of the telegraph 
lines.^^ Acting under this authority, the President, on February 
26, 1862, took military possession of all the telegraph lines in 
the United States, and appointed Anson Stager Military Super- 
intendent of these lines, exercising military control during the 
remainder of the war. It was expressly ordered, however, that 
such control was ''not intended to interfere in any respect with 
the ordinary affairs of the companies or with private busi- 
ness. "^^ 

During the recent war, a much more comprehensive control 
was established over all the means of communication. As early 
as 1912, Congress had authorized the President, "in time of 
war or public peril or disaster," to close, control, or take over 
and use all the radio stations within the jurisdiction of the Uni- 
ted States ;^^ and by joint resolution of July 16, 1918, he was 
further empowered to take possession of and to operate, in time 
of war, any telegraph, telephone, marine cable, or radio system, 
such control not to extend beyond the date of the declaration of 
peace.^" 

88 Executive orders of May 14, May 16, May 22, June 12, June 30, July 
3, Sept. 27, Nov. 2, 1917. Emergency Legislation, 169-170, 171-173, 179, 
189; N. Y. Times Current Hist. Mag., VI, 237. 

89 Proclamation of Mar. 20, 1918. TJ. S. Stats., 65 Cong., 2 Sess., Procs., 
117. The 87 Dutch vessels thus seized were returned in the early part of 
1919. Official U. S. Bulletin, Feb. 3, 1919. 

90 Proclamation of June 28, 1918. U. S. Stats., 65 Cong., 2 Sess., Procs., 
160. 

91 Urgent Deficiency Act of Mar. 28, 1918. Public No. 109, 65 Cong. 

92 Proclamation of Dec. 3, 1918. U. S. Stats., 65 Cong., 3 Sess., Procs., 
270. 

93 Siipra, 214. 

94 See order of Feb. 25, 1862. Eichardson, op. cit., VI, 108-109. 

95 Act of Aug. 13, 1912. 37 Stat, at L., 302 (Sec. 2). 

96 Public Ees. No. 38, 65 Cong. U. S. Stats., 65 Cong., 2 Sess., 904. 



91Q 
219] POWERS OF ECONOMIC CONTROL '^^^ 

Acting therefore under express statutory authority, President 
Wilson, immediately upon the entry of the United States into 
the World War, directed the Secretary of the Navy to assume 
control of all the means of radio communication withm the 3ur- 
isdiction of the United States - On July 22, 1918, he took over 
the telegraph and telephone systems, vesting their administration 
in the Postmaster General;- and shortly before the armistice 
was signed, he likewise assumed control of the marine cables. 

The war-time control thus assumed of the wire services ditter- 
ed from that assumed in the Civil War in that it was not strict- 
ly for military purposes, but to overcome the difficulties of a 
competitive system arising out of the war, and 'Ho broaden the 
use of the service at the least cost to the people." "° The seiz- 
ure of the cables, tho vigorously assailed as an undue exercise ot 
executive power,^°^ was explained by the President to have been 
necessaiy in order "to keep an open wire constantly available 
between Paris and the Department of State, and another be- 
tween France and the Department of War," ''' and was upheld 
by the courts as a legitimate exercise of his war power."^ 

Complete control over these various systems of communica- 
tion was exercised by the Postmaster General, acting under the 
direction and authority of the President, extending to the uni- 
fication of the various competing companies, the ousting of the 
old officers in many cases, and the fixing of rates, both inter- 
state and intrastate,"* until the systems were returned to pri- 
vate control.^"^ 

97 Executive order of Apr. 6, 1917. Willoughby, Government Organim- 
tion in War Time and After, 40. 

98 Proelamation of July 22, 1918. U. S. Stats., 65 Cong., 2 Sess., Procs., 

163. . 

99 Proclamation of Nov. 2, 1918. Ibid., 228. 

100 Statement of Postmaster General Burleson on assuming control. Of- 
ficial Bulletin, July 24, 1918. 

101 See arg-ument of ex-Justice Hughes. N. Y. Times, Dec. 28, 1918. 

102 Address to Congress, Dec. 2, 1918. Ibid., Dec. 3, 1918. 

los Commercial Cable Company v. Burleson, 255 Fed. Eep., 99 (1919). 

104 The President's right to fix both interstate and intrastate rates for 
the wire services was upheld in Dakota Central Telephone Company v. South 
Dakota, 250 U. S., 163 (1919). 

105 The cables were, by order of Apr. 29, 1919, returned to their owners 
on May 2, 1919; the telegraph and telephone systems on August 1, 1919. 
United States Bulletin, May 1, 1919; Fol. Sci. Quar., XXXIV, Supp., 25 
(Sept., 1919). 



IV. Powers Relating to the Termination 
of War 



CHAPTER XIII 

POWEE OF TERMINATING WAR IN THE 
UNITED STATES 

There are generally said to be three different ways in which a 
war may be terminated: (1) there may be a simple cessation 
of hostilities on the part of the belligerents ; (2) there may be 
a complete subjugation of one of the belligerents by the other, 
involving the conquest and annexation of its territory and the 
extermination of its government; and (3) there may be a form- 
al re-establishment of peaceful relations between the belliger- 
ents through an agreement embodied in a special treaty.^ 

Instances of the first method are rare, and have never occur- 
red in the case of wars to which the United States has been a 
party. The second method is more common in the history of na- 
tions,^ but would seem to be precluded as a possibility on the 
part of the United States, because of the doctrine laid down by 
the Supreme Court that wars of conquest and aggrandizement 
by the United States are unconstitutional.^ A treaty of peace is 

1 Oppenheim, International Law, II, 275 ; Lawrence, Frineiples of Inter- 
national Law, 568. 

2 For examples of each of these methods, see Oppenheim, op. cit., II, 
275-276, 279. 

3 ' ' The genius and character of our institutions are peaceful and the 
power to declare war was not conferred upon Congress for the pui-pose of 
aggression or aggrandizement, but to enable the general government to 
vindicate by arms, if it should become necessary, its own rights and the 
rights of its citizens. A war, therefore, declared by Congress can never 
be presumed to be waged for the purpose of conquest or the acquisition of 
territory; nor does the law declaring the war imply an authority to the 
President to enlarge the limits of the United States by subjugating the 
enemy's country. . . He may invade the hostile country, and subject it 
to the sovereignty and authority of the United States. But his conquests 
do not enlarge the boundaries of this Union, nor extend the operation of 
our institutions and laws beyond the limits before assigned to them by 

223 



224 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [224 

therefore not only ' ' the normal method of terminating war, ' ' * 
and the only method heretofore employed in the case of wars in 
which the United States has been a belligerent (excepting, of 
course, the Civil War), but has also apparently been considered 
throughout our entire history as the only possible method under 
the Constitution. 

Recently, however, strong opinions have been expressed that 
wars may be terminated by the United States in other ways than 
by a formal treaty of peace. Thus, in an address before the 
Washington Commercial Club, March 18, 1919, Senator Lenroot 
(Wisconsin), speaking against the proposed constitution for the 
League of Nations and protesting particularly against the in- 
corporation of that constitution into the peace treaty, made this 
statement: ''We have accomplished the purpose we had when 
we declared war and, while it would be desirable to have a form- 
al treaty of peace with Germany, it is not necessary. We can 
declare the war ended and go about our business, and I confi- 
dently predict that this is what will be done if the treaty is not 
ratified by the Senate."^ A statement by Senator Poindexter 
(Washington), issued on the same day, was to the same effect 
but even more explicit : "If the American delegation refuses to 
make peace with Germany, let the Entente make peace with 
Germany, and let Congress assemble and declare peace and pass 
a law to bring the American army home. Congress has the same 
power to declare peace that it has to declare war, and has full 
control over all movements of the army and navy, including the 
Commander-in-Chief." "^ A well known journal likewise expres- 
sed the opinion that ' ' Congress could at any time by simple reso- 
lution declare the state of war at an end, ' ' '' and at least one dis- 
tinguished jurist has concurred in these views, saying that "peace 
could, no doubt, also be restored by an Act of Congress. ' ' ^ 

Moreover, serious attempts have recently been made in Con- 
gress to assert the power of that body to declare peace independ- 

the legislative power." Fleming v. Page, 9 How., 603, 614-615 (1849). 
Cf. also S. E. Baldwiiij in Am. Jour. Int. Law, XII, 14 (Jan., 1918) ; 
Memoirs of John Qui/ncy Adams, XII, 144 (Jan. 10, 1845). 

4 Oppenheim, op. cit., II, 280. 

5 N. ¥. Times, Mar. 19, 1919. 
eiMd., Mar. 18, 1919. 

7 The Nation, May 31, 1919, 

8S. E. Baldwin, in Am. Jour. Int. Law, XII, 13-14 (Jan., 1918). 



225] POWER OF TERMINATING WAR IN UNITED STATES 225 

ently of a formal treaty. Thus, Senator Knox, on June 10, 1919, 
declared that any attempt on the part of the Peace Conference 
so to intertwine the peace treaty and the covenant of the League 
of Nations as to prevent their separation by the Senate, would be 
met with a resolution in Congress declaring the war formally at 
an end.^ On June 23, Senator Fall (New Mexico) and Senator 
Edge (New Jersey) each offered joint resolutions in the Senate 
declaring the state of war between Germany and the United 
States terminated; and on September 15, Representative Mason 
(Illinois) submitted a concurrent resolution in the House declar- 
ing peace "with all the world." ^° 

These resolutions were all allowed to die in committee, but 
immediately after the first rejection of the treaty on November 
19, Senator Lodge, Republican floor leader and chairman of the 
Senate Committee on Foreign Relations, offered a concurrent 
resolution ' ' that the said state of war between Germany and the 
United States is hereby declared to be at an end, ' ' while Senator 
Knox, on December 13, offered a joint resolution declaring 
simply, "That peace exists between the United States and Ger- 
many. ' ' These two resolutions were taken under serious consid- 
eration by the Senate Committee on Foreign Relations, and on 
December 20, Senator Knox reported from that committee a sub- 
stitute joint resolution, repealing the joint resolution of April 
6, 1917, which declared a state of war with Germany, and pro- 
viding that such repeal should be effective, with certain stated 
conditions upon Germany, "upon the ratification of a treaty of 
peace between Germany and three of the principal allied and 
associated powers. ' ' ^^ 

The expressions of opinion noted, the presentation and serious 
consideration of these resolutions by the responsible leaders of 
the majority party in Congress, and the later unprecedented 
action in actually pressing a similar resolution to a vote,^^ would 

9 Press report in Chicago Tribune, June 11, 1919. 

10 S. J. Ees. 60, Mr. Fall; S. J. Res. 61, Mr. Edge; H. Con. Res. 32, 
Mr. Mason. Cong. Becord, 66 Cong., 1 Sess., 1629, 5808. 

lis. Con. Res. 17, Mr. Lodge; S. J. Ees. 136, Mr. Knox; S. J. Res. 
139, Mr. Knox. Cong. Becord, 66 Cong., 1 Sess., 9321; ibid., 2 Sess., 540, 
981. 

12 Immediately after the second rejection of the peace treaty by the 
Senate on Mar. 19, 1920, Senator Knox moved consideration of his resolu- 
tion repealing th© declaration of war, and several proposals were again 



226 WAR POWERS OP THE EXECUTIVE IN UNITED STATES [226 

seem to make pertinent a brief examination into the subject of 
the power, in the United States, to terminate war and declare 
peace. 

Passing over the obviously unsound inference of Senator Poin- 
dexter that Congress might assemble in special session on its 
own motion, without a call from the President,^^ it might seem 
evident that since Congress has the power to bring about a state 
of war by means of a declaration, which has in every case taken 
the form of an act of Congress or of a joint resolution,^* it 
could also, by a mere repeal of such declaration, terminate the 
state of war and bring about a state of peace.^^ It should be point- 
ed out in the first place, however, that Congress does not have an 
absolute power of repeal ; that is, it cannot repeal each and every 

made in the House for terminating the state of war and declaring peace 
by action of Congress. On April 9, the House, by a large majority (242- 
150), passed the Porter resolution (prepared by the House Committee on 
Foreign Affairs), which declared that "Whereas, the President of the Uni- 
ted States in the performance of his constitutional duty to give to Congress 
information of the state of th© Union, has advised Congress that the war 
with the Imperial German Government has ended, . . . the state of war 
declared to exist between the Imperial German Government and the people 
of the United States ... is hereby declared at an end." This reso- 
lution also provided for the repeal of all the war emergency legislation, 
and gave Germany 45 days in which to declare a like termination of the war 
under the conditions imposed, with a penalty of an economic boycott in case 
of refusal. The Knox resolution, repealing the declarations of war against 
both Germany and Austria-Hungary, and declaring the state of war with 
those countries at an end, was substituted in the Senate, passed by that 
body on May 15, by a vote of 43-38, and accepted by the House on May 21. 
It failed of repassage over the President's veto, the final vote in the House 
being 219-152. It seems likely, however, that some such resolution may 
be passed after the inauguration of the new Republican admin- 
istration. See texts of the Porter and, Knox resolutions in N. Y. Tvmes 
Current Hist. Mag., XII, 209-210, 372-373 (May, June, 1920). For Presi- 
dent Wilson's veto message, see ibid., XII, 707-709 (July, 1920). 
T-^Supra, 224. 

14 The declarations in the cases of the War of 1812, the war with Mexico, 
and the war with Spain were in th© form of acts of Congress; those in 
the recent wars with Germany and Austria- Hungary in the form of joint 
resolutions. 

15 This is the particular point emphasized by Judge Baldwin, op. cit., 
note 8. The same view is also held by Professor Corwin. See his article, 
"The Power of Congress to Declare Peace," in Mich. Law Bev., XVIII, 
669-675 (May, 1920), esp., 673, 674. 



227] POWER OP TERMINATING WAR IN UNITED STATES 227 

legislative enactment and thereby restore the status quo ante. 
For example, states are admitted to the Union by means of an 
enabling act passed through the ordinary legislative channels; 
but no state can be deprived of its place in the Union by a 
subsequent repeal or nullification of that earlier legislative act 
of admission." Hence, it does not necessarily follow that Con- 
gress can, by an act of repeal, terminate a state of war and de- 
clare a state of peace, merely because it can, by a legislative 
declaration, bring about such a state of war. 

In the second place, it should be noted that such an act of re- 
peal is subject to the approval or veto of the President, just as 
the original declaration, and hence its enactment would not be 
so simple a matter as these senators seem to conclude. If such 
an act were passed over the President 's veto, the President could 
still prevent the complete restoration of a normal state of peace 
by declining to resume diplomatic relations with the former 
enemy or to perform other acts that are strictly within his juris- 
diction but which presuppose a state of peace. A declaration of 
peace by Congress through a concurrent resolution, such as that 
proposed by Senator Lodge, would clearly be unconstitutional, 
since it would deprive the President of his constitutional right to 
approve or disapprove every act of legislative effect.^'^ At the 
most, such a resolution would amount to nothing more than an 
expression of opinion, and could be entirely disregarded by the 
President.^^ Apparently Senator Lodge and the Foreign Ke- 
lations Committee of the Senate recognized the impossibility of 
any attempt by Congress to declare peace without the coopera- 
tion of the President, when the Lodge concurrent resolution was 
dropped and a substitute joint resolution was proposed.^^ 

Finally, while the Constitution specifically gives Congress the 
power to declare war, it does not anywhere expressly confer the 
power of declaring or making peace. Hence it is by no means 
certain that Congress has any power, either by a repeal of its 
original declaration, or by an independent act, resolution, or 
declaration, to terminate a state of war and bring about a state 

16 See Willoughby, Constitutional Law, I, 426. 

17 Constitution, Art. I, Sec. 7, CI. 3. 

18 Cf. Quiney Wright, in ColumUa Law Bev., XX, 128-139, 131 (Feb., 
1920). 

19 Supra, 225, note 12. 



228 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [228 

of peace. A study of the debates in the Convention of 1787 will 
throw some light on the intention of the makers of the Constitu- 
tion in that regard. 

When the power of declaring war was under consideration on 
August 17, Mr. Pinkney opposed vesting the power in the Leg- 
islature but favored the Senate as the best depository, sajdng 
that "it would be singular for one authority to make war, and 
another peace. " Mr. Ellsworth, on the other hand, thought there 
was a material difference between the cases of making war and 
declaring peace, adding that "war also is a simple and overt 
declaration, peace attended with intricate and secret negotia- 
tions." After the power of declaring war had been definitely 
voted to Congress, Mr. Butler, evidently agreeing with Pinkney 
that the power of making war and peace should be in the same 
hands, moved to add the words "and peace" after the word 
"war," thus giving to the Legislature the power over both. 
Gerry seconded the motion, remarking that the ' ' Senate are more 
liable to be corrupted than the whole Legislature." However, 
the motion was lost by unanimous vote of the States, the Con- 
vention thus taking a definite stand against giving Congress the 
power to make peace.^° 

The intention of the Convention as to the proper location of 
the power to make peace is further shown in the debates and in 
the actions taken concerning the treaty-making power. The 
clause regarding treaties as reported to the Convention read as 
follows : ' ' The President by and with the advice and consent of 
the Senate shall have power to make Treaties, but no treaty shall 
be made without the consent of two thirds of the members pres- 
ent. " "WTien this came up for consideration on September 7, 
Mr. Wilson attempted to have the concurrence of the House of 
Kepresentatives added to that of the Senate, but his motion was 
lost, receiving only two affirmative votes.^^ Madison's motion 
to except treaties of peace from the two-thirds provision, ' ' allow- 
ing them to be made with less difficulty than other treaties, ' ' was 
adopted unanimously, whereupon he moved to authorize two- 
thirds of the Senate to make treaties of peace without the con- 
currence of the President. "The President," he said, "would 
necessarily derive so much power and importance from a state 

20 Madison's Journal (Hunt ed.), II, 188-189. 

21 Ibid., 327-328. 



229] POWER OF TERMINATING WAR IN UNITED STATES 229 

of war that he might be tempted, if authorized, to impede a 
treatj^ of peace." Mr. Butler seconded this motion and argued 
strenuously for it *'as a necessary security against ambitious 
and corrupt Presidents." Mr. Gorham and Grouverneur Morris 
opposed the motion, the latter holding ''that no peace ought to 
be made without the concurrence of the President, who was the 
general Guardian of the National interests. ' ' ^^ Madison 's mo- 
tion failed,^^ but the next day the whole clause was reconsider- 
ed, and another distinct effort was made, under the leadership 
of Mr. Sherman, to require the sanction of the Legislature to 
"rights established by a treaty of peace." Tho seconded by 
Mr. Morris, Sherman 's motion does not appear even to have been 
acted upon, the final action of the Convention being to adopt the 
clause as originally reported, the exception of treaties of peace 
from the two-thirds provision being stricken out.^* 

The discussion throughout shows very clearly that an over- 
whelming majority in the Convention thought, as did Ellsworth, 
"that there was a material difference between the cases of mak- 
ing war and declaring peace," ^^ that it did not consider Con- 
gress as vested with the power to make peace unless given ex- 
press authority. The Convention declined emphatically to give 
Congress this express authority, but, on the other hand, did con- 
sider the power of making peace as belonging under the treaty- 
making power to the President and Senate. This is also the view 
expressed by Justice Story, when he said that the proposal to add 
the power "to make peace" to the power already given to Con- 
gress "to declare war" was unanimously rejected, "upon the 
plain ground that it more properly belonged to the treaty-mak- 
ing power. ' ' ^^ Ex- Justice Hughes recently made practically the 
same statement,^^ and other well known authorities on American 

22 Madison's Journal (Hunt ed.), II, 330. 

23 Hid. 
zilUd., 333-334. 

25 IMd., 188. "It is not at all necessary that the power of declaring 
war and that of making peace are vested by a Constitution in the same 
hands." Oppenheim, International Law, II, 283-284. "The power to de- 
clare war does not necessarily include that of making a treaty of peace. . . 
They are generally associated together, though not always." Baker, Hal- 
leclc's International Law, I, 329. 

26 Story, Commentaries on the Constitution, II, 88. 

27 In Central Law Jour., LXXXV, 206 (Sept. 21, 1917). 



230 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [230 

constitutional law likewise hold that the Constitution vests the 
power of making peace, not in Congress, but in the President and 
the Senate.^® 

It is significant in this connection, not only that the recent 
claims to a power in Congress of declaring peace are entirely 
without precedent and contrary to the best interpretations of 
the Constitution, but also that such claims are refuted by specific 
declarations by Congress itself. Thus, every important legisla- 
tive enactment of Congress during the recent war which contain- 
ed any reference to the conclusion of peace, shows that Congress 
itself contemplated no possibility of terminating the state of 
war through its own action alone. Two of the measures — the 
Food and Fuel Control Act and the Trading with the Enemy 
Act — apparently considered the President alone vested with 
considerable authority in that regard, the former declaring that 

28 For example, Schouler says that the power of Congress under the Con- 
federation "embraced clearly the determination of both war and peace, 
while that of the Congress of our Constitution is in expression confined to 
war alone, since the full treaty-making power is lodged by the latter in- 
strument (which makes no mention of declaring peace at all) with the new 
branch of government, the Executive, subject to a two-thirds ratification in 
the Senate. ' ' Constitutional Studies, 137. 

Likewise, the opinion of such distinguished authorities as ex-President 
Taft and ex-Attorney-General Wickersham is well known. For a careful 
statement by the latter of the constitutional question, see N. Y. Times Cur- 
rent Hist. Mag., XII, 367-372 (June, 1920). And Senator Sterling of South 
Dakota (Eep.), tho he voted for the Knox resolution, made the following 
significant statement shortly after the presidential election: "I believe, 
from the Harding campaign speeches, that the first step will be the passage 
of a peace resolution similar to the Knox resolution. I am, however, a little 
hazy as to just where we will be left when we have passed the resolution. 
We declare a state of peace with Germany and Austria. But without a 
similar declaration on their part, I do not see that peace will have been for- 
mally established. The passage of a peace resolution by Congress is not 
the method of making peace contemplated by the Constitution of the Uni- 
ted States." CMcago Tribune (Staff Correspondence) , Nov. 22, 1920. ±'or 
the contrary view, see especially the opinions of Senator Kjiox and Profes- 
sor Corwin, in N. Y. Times Current Hist. Mag., XII, 372-376 (June, 1920), 
and Mich. Law Bev., XVIII, 669-675 (May, 1920), respectively. 

It is worthy of note in this connection that President Wilson, in his veto 
of the Knox resolution, ignored the constitutional question entirely, basing 
his veto rather on the grounds that the passage of the resolution meant the 
abandonment of our allies and of the objects for which we had fought the 
war. 



231] POWER OF TERMINATING WAR IN UNITED STATES 231 

the provisions of the act should cease to be in effect "when the 
existing state of war . . . shall have terminated, and the 
fact and date of such termination shall be ascertained and pro- 
claimed by the President;" the latter that "the words 'end of 
the war,' as used herein, shall be deemed to mean the date of 
proclamation of exchange of ratifications of the treaty of peace, 
unless the President shall, by proclamation, declare a prior date, 
in which case the date so proclaimed shall be deemed to be the 
'end of the war' within the meaning of this Act." ^^ 

Other measures specifically contemplated the termination of 
the war by means of a treaty of peace. Thus, the Emergency 
Shipping Fund Act provided that the authority granted in that 
act to the President should cease ' ' six months after a final treaty 
of peace is proclaimed between this Government and the Ger- 
man Empire;" the Railway Control Act required that Federal 
control should not continue longer than "one year and nine 
months next following the date of the proclamation by the Presi- 
dent of the exchange of ratifications of the treaty of peace ; ' ' the 
Overman Act was to terminate "six months after the termina- 
tion of the war by the proclamation of the treaty of peace, or at 
such earlier time as the President may designate ; ' ' and the Con- 
trol of Communications Act provided that control of the tele- 
graph and telephone systems "shall not extend beyond the date 
of the proclamation by the President of the exchange of ratifi- 
cations of the treaty of peace. ' ' ^^ 

It seems clear, therefore, that a formal treaty of peace is the 
only method contemplated by the Constitution for the termina- 
tion of a foreign war and the restoration of peace, as it has here- 
tofore been the only method ever suggested or actually employed 
in practise. The conclusion of peace rests therefore, in the Uni- 
ted States, with the President and the Senate, as the treaty-mak- 
ing power. 



29 Act of Aug. 10, 1917 (See. 24); Act of Oct. 6, 1917 (Sec. 2). Wig- 
more, Source-Boole of Military Law and War-Time Legislation, 512, 544. 

30 Act of June 15, 1917; Act of Mar. 21, 1918 (Sec. 14); Act of May 
20, 1918 (Sec. 1) ; Joint Eesolution of July 16, 1918. Wigmore, op. cit., 
484, 583, 586, 602. 



CHAPTER XIV 

POWERS WITH REGARD TO A TREATY OF PEACE 

Since the conclusion of a treaty of peace is the only method by 
which a foreign war may be terminated by the United States/ 
it is necessary to note the powers of the President in that connec- 
tion. In the first place, while the Senate shares the treaty-mak- 
ing power with the President and therefore enjoys considerable 
power in connection with the definitive conclusion of peace, cer- 
tain preliminaries may be undertaken that are within the prov- 
ince of the President alone. These are the armistice and the pre- 
liminary protocol. 

An armistice, strictly speaking, merely provides for a tempor- 
ary suspension of hostilities, but, if general in its scope, it is 
usually entered into ' ' with a view to negotiations for peace ; " ^ 
while a preliminary protocol is a preliminary settlement indicat- 
ing the lines along which the peace negotiations are to be con- 
ducted.^ The two cannot always be clearly differentiated, how- 
ever, in that the latter may also provide for the suspension of 
hostilities, and both are generally used ' ' as devices of the execu- 
tive department for reaching a basis of negotiations without 
awaiting the difficult and delayed conferences necessary for the 
final treaty. ' ' * Neither requires the ratification of the Senate 
before going into effect, each being considered as ''a proper ex- 
ercise of his war powers by the President. ' ' ^ Both illustrate also 
the power of the President to enter into important international 
agreements without the consent of the Senate, in that through 

1 See preceding chapter. 

2 Lawrence, Principles of International Law, 564-567 ; Davis, Elements 
of International Law (4th ed.), 341. 

3 Cf. Benton, International Law and Diplomacy of the Spanish-American 
War, 226-228. 

4 Ibid., 227. 

5 Foster, Practice of Diplomacy, 318. 

232 



233] POWERS WITH REGARD TO A TREATY OF PEACE 233 

them he may not only determine as to the continuance or term- 
ination of hostilities, but may also lay down the conditions to 
be imposed upon the hostile power and practically commit the 
nation to a particular line of policy in the final peace confer- 
ence. 

President Madison sought in this way to bring about a ter- 
mination of the war of 1812 almost as soon as it was begun. Jona- 
than Russell, the American charge d'affaires in London, acting 
under instructions from Secretary of State Monroe issued only 
a few days after the declaration of war by Congress,^ made two 
attempts to arrange an armistice in the early fall of 1812. '^ Altho 
these attempts were unsuccessful, the British government declin- 
ing to consent to an armistice on the conditions named, they 
were useful in clarifying the issues of the war, in that Monroe 
selected from among the ' ' many just and weighty causes of com- 
plaint against Great Britain," the orders in council and the im- 
pressment of seamen as those "considered to be of the highest 
importance. ' ' ^ 

The power of the Executive thus to define the issues of the war 
and to determine how far to yield in the interests of peace, was 
further illustrated when the counter-proposal of the British 
Government for a cessation of hostilities was rejected, on the 
ground that it was based on the repeal of the orders in council 
alone and disregarded the question of impressment.^ ''It will 
be seen from this," says an eminent historian, "that Madison 
and Monroe continued the war on the question of impressment 
alone. "^'^ 

The power of the President, as Commander-in-Chief, not only 
to terminate hostilities by arranging an armistice, but also to 
formulate such conditions for the armistice as to bind the nation 
to a particular policy in the peace conference, was clearly demon- 
strated in 1898, when in response to the Spanish request for 

6 Monroe to Eussell, June 26, 1812. Am. State Papers, For. Bel., Ill, 
585-586; see also instructions of July 27. Ihid., 586. 

7 Eussell to Lord Castlereagh, Aug. 24, Sept. 12, 1812. Ihid., 589, 591, 
^lUd., 585. 

9 Warren to Monroe, Sept. 30, 1812; Monroe to Warren, Oct. 27, 1812. 
Ihid., 595-597. 

10 Channing, History of the United States, IV, 480 ; cf. Updyke, Diplom- 
acy of the War of ISIS, 136-139. 



234 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [234 

terms of peace, President McKinley embodied his conditions in 
the protocol of August 12, which he authorized the Secretary of 
State to sign on the part of the United States,^^ 

This protocol not only provided for an immediate suspension 
of hostilities and a subsequent peace conference to arrange the 
final terms, but stipulated that Spain should relinquish her claim 
to sovereignty over Cuba, cede Porto Rico and an island in the 
Ladrones to the United States, and evacuate these places im- 
mediately. The final disposition of the Philippines was to be 
left to the peace conference, the United States meanwhile to oc- 
cupy and hold the city, bay, and harbor of Manila.^^ The pro- 
tocol thus took on the character of much more than a preliminary 
agreement governing the termination of hostilities, but commit- 
ted the United States to a certain very definite policy in the peace 
conference and approached very closely to a definitive treaty of 
peace.^^ 

Similarly, the armistice conditions imposed upon Austria- 
Hungary and Germany by President Wilson in 1918,^* not only 
laid down terms which safeguarded the victory of the Allies in 
a military and naval sense, but, as embodying the famous * ' four- 
teen points," were generally understood to have committed the 
United States to a definite political policy in the peace confer- 
ence, for his supposed departure from which in that conference 
the President has since undergone the bitterest criticism. 

Having the power, through the armistice and the preliminary 
protocol, thus to terminate hostilities and to a considerable ex- 
tent define the future peace conditions, the President may also, 
on his own authority alone, undertake measures which presume 
the virtual ending of the war and the existence of a state of 
peace. President McKinley, having proclaimed the suspension 
of hostilities with Spain in accordance with the protocol of Au- 
gust 12, 1898, immediately raised the blockade of the ports of 
Cuba and Porto Rico, and on August 18 ordered 100,000 of the 
volunteers, or as near that number as practicable, to be mustered 

11 For. Bel. 1898, 825. 

12 See test of protocol, lUd., 828-830. 

13(7/. J. B. Moore, in Fol. Sci. Quar., XX, 391-392; Moore's Digest, 
V, 213; Crandall, Treaties: Their Making and Enforcement, 103-104. 

14 The texts of these may be conveniently found in N. Y. Times Current 
Eist. Mag., IX, 364-368, 396-397 (Dec, 1918). 



235] POWERS WITH REGARD TO A TREATY OF PEACE 235 

out/^ President Wilson likewise ordered a general demobiliza- 
tion immediately after the signing of the armistice," and lifted 
many of the war-time restrictions before the definitive conclu- 
sion of peace," thus assuming, as he might, that the armistice 
was something more than a mere suspension of hostilities. 

It might seem that the President, through such exercise of 
power as has been noted, could, of his own authority alone, not 
only terminate hostilities, but bring about an actual termination 
of the state of war. Thus, in 1898, many neutral powers treated 
the protocol of August 12 as practically ending the war between 
the United States and Spain, and permitted public vessels of the 
United States to enter and use their ports freely as in time of 
peaee.^^ So also it was reported in March, 1919, that the Amer- 
ican peace delegation at Paris was considering bridging over the 
period between the signing of the peace treaty and its ratification 
by the Senate, by a modus vivendi declaring the war ended as 
of date of signature, so as to terminate the war legislation and 
enable an earlier return to normal conditions.^^ 

It was even solemnly held in a court decision rendered at about 
the same time, that the "war was brought to a close when the 
armistice was signed, ' ' because President Wilson, in announcing 
the armistice to Congress, used the words, ' ' The war thus comes 
to an end. " ^° In numerous other cases involving war-time legis- 
lation eminent counsel argued that the state of war was terminat- 
ed by the signing of the armistice and other acts of the Presi- 
dent; and on June 10, 1919, Representative Dyer (Massachus- 
etts), a member of the House Judiciary committee, cabled the 
President to ''exercise the authority which I am sure you pos- 

15 Message to Congress, Dec. 5, 1898. Richardson, op. cit., X, 174-175. 

16 Demobilization was virtually completed by Oct. 14, 1919, the army 
having by that time been reduced to less than 300,000 men. N. Y. Times 
Current Hist. Mag., XI, 230 (Nov., 1919). 

17 Such as restrictions on the use of food and fuel, on trade and industry, 
and on the manufacture of beverages. Supra, 206, note 20. 

18 Moore 's Digest, VII, 335. 

19 Associated Press dispatch, Mar. 15, 1919. 

20 Federal Judge Walter Evans, in a decision handed down in Louis- 
ville, Ky., Mar. 24, 1919. Reported in Chicago Tribune, Mar. 25, 1919. The 
peace resolution passed by the House, Apr. 9, 1920, likewise referred to 
these words of the President as authority for declaring the war ended. 
Supra, 226, note 12. 



236 



WAR POWERS OF THE EXECUTIVE IN UNITED STATES [236 



sess" to proclaim the war ended and demobilization completed, 
and thereby prevent war-time prohibition from going into ef- 
fect.21 

However, the better opinion is that the President alone can- 
not, by a protocol, proclamation, or other act, bring about the 
termination of a state of war and the existence of a state of 
peace. Thus, Attorney-General Griggs in 1898 held that the 
signing of the protocol of August 12 and the suspension of hos- 
tilities did not terminate the state of war between the United 
States and Spain j-^ Attorney-General Palmer likewise ruled in 
1919 that a state of war could not be terminated by act of the 
President alone, but only by a treaty of peace f^ and President 
Wilson himself declined to attempt any such exercise of power, 
declaring ''not only that in my judgment I have not the power 
by proclamation to declare that peace exists, but that I could 
in no circumstances consent to such a course prior to the ratifi- 
cation of a formal treaty of peace. ' ' ^* 

Finally, the courts have definitely decided that the signing 
of an armistice is not equivalent to the termination of a state of 
war. Judge Hand, of the United States District Court of New 
York, pointed out that "so long as the treaty of peace is not 
ratified, there is some chance of the resumption of hostilities," 
even tho that chance might be very slight f^ while the Supreme 
Court likewise unanimously held that the cessation of hostilities 
in the recent war by means of the armistice did not mean the 
' ' conclusion of the war, ' ' and pointed to various ' ' facts of public 
knowledge" which showed the war emergency to be still in exist- 
ence.^^ 

In the definitive conclusion of peace through a formal treaty, 
the President, altho he is of course required to obtain the ' ' advice 

21 Chicago Tribune, June 11, 1919. 

22 22 Op. Atty. Gen., 190, 191. 

23 See Ms ruling on the War-Time Prohibition Act, in N. Y. Times, Aug.. 
28, 1919; also his telegram to Judge Evans, in ease cited in this chapter, 
note 20. 

24 Letter to Senator Fall, Aug. 20, 1919. N. Y. Times, Aug. 22, 1919. 

25 See decisions rendered by him, in cases involving the validity of war- 
time prohibition and wartime cable control, Jan. 20 and Aug. 20, 1919. 
N. Y. Times, Jan. 21, Aug. 21, 1919. 

2e Hamilton v. Kentucky Distilleries and Warehouse Co., 251 U. S., 146 
(1919). 



237] POWERS WITH REGARD TO A TREATY OF PEACE 237 

and consent" of the Senate before putting a treaty into effect,^^ 
has practically complete control of all the other functions and 
processes of treaty-making.^^ In the first place, the President 
alone may appoint the commissioners who are to negotiate the 
treaty of peace, and he is not required to submit their nomina- 
tions to the Senate for confirmation. This) power rests upon the 
now well-recognized right of the President to use, at his discre- 
tion, special agents of a diplomatic or semi-diplomatic charac- 
ter — a right which one writer^® points out has four bases: (1) 
a presumptive legal basis in the acts of Congress giving the Presi- 
dent a contingent fund which he may expend for foreign inter- 
course without specific accounting;^" (2) the recognized right 
of the President to take the initiative in foreign affairs ;^^ (3) 
the general practise of governments under international law;^^ 
and (4) necessity.^^ 

Prior to 1815, the names of such special agents or commission- 
ers chosen to negotiate treaties were generally submitted to the 

27 Constitution, Art. II, See. 2, CI. 2. 

28 " As for making and declaring peace, the power . . . pertains no 
longer to Congress, but is lodged for negotiation and conclusion in the 
Presid,ent. " Schouler, Constitutional Studies, 140. "As the war power 
is shared between the President and Congress, but Congress does not share 
in the executive power, the breadth of the President's prerogatives as to 
the closing of war becomes of special importance. The limits imposed 
directly by the Constitution are few, its main one being the requirement of 
the consent of the Senate ... To make a declaration of war requires 
the assent of Congress as well as of the President. To end a war, it is 
enough for him to obtain the assent of the Senate, if he acts under the 
treaty-making power." S. E. Baldwin, in Am. Jour. Int. Law, XII, 13. 

29 H. M. Wriston, "Presidential Special Agents in Diplomacy," in Am. 
Pol. Sci. Bev., X, 481-499, esp. 482-488. 

30 As the earliest acts of this sort may be mentioned the acts of July 
1, 1790; Feb. 9, 179i3; May 1, 1810. Annals of Cong., 1 Cong., II, App., 
2232; 2 Cong., App., 1411; 11 Cong., II, App., 2585. 

31 Supra, ch. II. 

32 ' ' There seems to be no reason why the government of th© United 
States cannot, in conducting its diplomatic intercourse with other coun- 
tries, exercise powers as broad and general or as limited and peculiar, or 
special, as any other government. . . In fact, there has been no limit 
placed upon the use of a power of this kind, except the discretion of the 
sovereign or ruler of the country. ' ' Report of Senate Committee on For- 
eign Eelations, 1893, quoted by H. M. Wriston, op. cit., 486-487. 

33 See H. M. Wriston, op. cit., 487-488. 



238 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [238 

Senate for confirmation.^* According to this practise, President 
Madison even summoned the Senate in special session in May, 
1813, to consider his course in accepting the Russian offer of 
mediation," and to confirm the peace commissioners he had al- 
ready appointed and sent on theiv way. The Serate confirmed 
the nominations of John Quincy Adams and Senator James Bay- 
ard, but rejected that of Secretary of the Treasury Albert Gal- 
latin, on the ground that ''in the opinion of the Senate, the pow- 
ers and duties of the Secretary of the Department of the Treas- 
ury and those of an Envoy Extraordinary to a Foreign Power, 
are so incompatible that they ought not be and remain united in 
the same person." ^^ Upon the failure of this attempt to open 
peace negotiations, the President appointed another peace 
commission in January, 1814, again submitting the names to the 
Senate for confirmation,^® 

Since 1815, however, it has been very unusual to submit the 
appointments of treaty negotiators to the Senate at all,^^ and 
especially so with regard to peace commissioners. President 
Polk even felt it necessary to keep secret for a time his selection 
of Nicholas Trist as peace commissioner in 1847,^^ altho he vest- 
ed Trist with unusual powers, not only to accompany the army 
and negotiate peace at a favorable opportunity, but also to con- 
trol the military and naval operations.^^ His later appointments 
of Sevier and Clifford to negotiate the final treaty were, how- 
ever, submitted to the Senate for confirmation, tho it should be 
noted that Sevier was in reality selected for the permanent post 

34Crandall, Treaties: Their Making and Enforcement, 75-76. 

35 Updyke, Diplomacy of the War of 1812, 146-148. 

36 This commission consisted of John Quincy Adams, James Bayard, 
Henry Clay, Jonathan Russell, and Albert Gallatin, the first four names being 

submitted to the Senate on Jan. 14 and confirmed Jan. 18. Gallatin's 
name was added on Feb. 8, and confirmed the next day without serious op- 
position, he being no longer in the Cabinet. Ibid., 167-168. 

37 For instances of such appointments without the consent of the Senate, 
see Moore's Digest, IV, 453-457. 

ss Diary of James K. Folic, II, 468, 483; cf. II, 262, 268, 273. 

39 "Should he (Trist) make known to you in writing that the contingency 
haa occurred in consequence of which the President is willing that further 
active military operations should cease, you will regard such notice as a 
direction from the President to suspend them until further orders from 
this department." Secret orders to Gen. Scott and Commodore Perry, 
quoted by H. M. Wriston, op. cit., 495. 



239] POWERS WITH EEGARD TO A TREATY OF PEACE 239 

of minister to Mexico with, authority to complete the peace 
treaty negotiations, and that Clifford was added merely because 
of Sevier's illness.*" President McKinley likewise appointed 
the peace commissioners of 1898 without consulting the Senate ;*^ 
while President Wilson, in 1918, altho Congress was in session, 
merely ''announced" the peace delegation in a White House 
statement, and took the unprecedented step of including him- 
self." 

Having the power to appoint peace commissioners with or 
without the consent of the Senate, the President is not restrict- 
ed in his choice, but may select whom he will, without qualifica- 
tion. Public opinion seems to expect, however, that distinguish- 
ed men of both parties should be chosen, and one of the severest 
criticisms of President Wilson was his apparent selection of men 
who would reflect merely his own personal views. President 
Polk likewise found great difficulty in selecting a commissioner 
satisfactory to the country, probably one reason for the choice of 
a person in a somewhat obscure position.*^ 

40 Diary of James K. Folk, III, 378-383, 389-391. The treaty had been 
ratified by the Senate, Mar. 10, 1848, with amendments that required new 
negotiations. 

41 However, the commissioners were appointed and the treaty of peace 
completed during a recess of Congress. But in 1901, President McKinley, 
without consulting the Senate, altho it was then in session, appointed W. 
W. Eockhill as special commissioner to China, invested with full power to 
negotiate with the representatives of the other allied powers and of China 
concerning a settlement of the questions arising out of the Boxer Eebellion. 

42 Together with Secretary of State Lansing, Henry White, Edward M. 
House, and Gen. Tasker H. Bliss. Official U. S. Bulletin, Nov. 19, Nov. 30, 
1918. President Wilson's decision to participate personally in the peace 
negotiations at Paris raised again the interesting, tho purely academic 
question as to the President's constitutional right to leave the jurisdiction 
of the United States during his term of office. It is worthy of note that 
Hamilton's plan for a constitution definitely contemplated the consent of 
Congress for the absence of the President from the United States and 
even then for the exercise of his powers by the Vice- President during such 
absence. See Elliot's Debates, V, 587. The law and precedents governing 
the President's right to leave the country are discussed by Park Benjamin, 
in The Independent, Mar. 29, 1919. See also opinion of ex-Attorney Gener- 
al Wickersham, in N. Y. Times, Nov. 27, 1918 ; and Taf t, Our Chief Magis- 
trate and His Powers, 50-51. 

4s Diary of James K. Folk, II, 466. Nicholas Trist was Chief Clerk of 
the Department of State when appointed peace commissioner. 



240 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [240 

There seems also to be a considerable body of opinion that, 
since the Senate is constitutionally a coordinate part of the 
treaty-making power, it should be represented on the commis- 
sion to negotiate peace. President Madison probably deferred 
to this sentiment in appointing Senator Bayard, a Federalist, 
and Henry Clay, formerly in the Senate but at that time Speak- 
er of the House, to the peace commission of 1814,*^" President 
McKinley went so far in that respect as to give the Senate a ma- 
jority on the peace commission of 1898;** and President Wilson's 
entire disregard of the Senate in making up the peace commis- 
sion in 1918 called forth especially severe criticism, as tho it 
were an utter contempt for the constitutional position and rights 
of that body. 

As a matter of fact, tho senators have been quite commonly 
appointed on commissions to negotiate treaties, including the 
peace treaty of 1898, there is excellent authority for the view 
that their appointment to such missions is not only inexpedient 
and improper, but also contrary to the constitutional principle 
that no civil officer of the United States shall at the same time 
be a member of either house of Congress.*^ President Monroe, 
for example, stated in 1818 that he "did not approve the prin- 
ciple of appointing members of Congress to foreign missions, but, 
as it had been established in practice from the first organization 

43a Both Bayard and Clay, however, evidently considered it improper 
to combine the functions of peace commissioner and member of Congress, 
as both resigned their respective seats immediately upon appointment to 
the peace commission. In fact, Bayard vtrote to Gov. Haslett of Delaware, 
under date of May 3, 1813, that "the acceptance of the appointment is on 
my part an implied and virtual resignation of my seat in the Senate. . ." 
See Report, Am. Hist. Assn. 1913, II, 221 ; Clay & Oberholtzer, Benry Clay, 
75. 

44Cushman K. Davis (Minn.), Eepublican, chairman of the Senate Com- 
mittee on Foreign Relations; Wiliam P. Frye (Me.), Eepublican; and 
George Gray (Del.), Democrat. The other members of the commission were 
William E. Day, who resigned as Secretary of State in order to head the 
commission, and Whitelaw Eeid, former minister to France. 

■*5 < ' No senator or representative shall, during the time for which he was 
elected, be appointed to any civil office under the authority of the United 
States, which shall have been created, or the emoluments whereof shall have 
been increased during such time; and no person holding any office under 
the United States shall be a member of either House during his contin- 
uance in office." Constitution, Art. I, Sec. 6, CI. 2. 



241] POWERS WITH KBGABD TO A TREATY OF PEACE 241 

of the present Government, and, as the members of Congress 
would not be satisfied with the opposite principle, he did not 
think it proper to make it a rule for himself. ' ' *^ 

The Senate itself has upon occasion taken a positive stand 
against the participation of members of that body in treaty nego- 
tiations. Thus, in 1898, the Senate declined to confirm the nom- 
inations of Senators Hoar, CuUom, and Morgan to the Hawaiian 
Commission ''upon the ground that it would no longer consent 
to the selection of members of this body to negotiate important 
treaties that were to be reported to the Senate. "^^ In fact, the 
feeling in the Senate was at that time so strong against that prac- 
tise that the Judiciary Committee ''almost unanimously" con- 
templated reporting a bill or resolution prohibiting it for the 
future, and only refrained from doing so because it was thought 
that such action might be construed as a discourtesy to those 
senators who had acted under such appointments. The com- 
mittee instructed Senator Hoar, however, to see the President 
and say that it hoped the practise would be discontinued; to 
which suggestion the President responded by assuring Senator 
Hoar that it would not occur again, altho he called attention to 
the difficulty of getting suitably qualified men outside of the 
Senate or House.*^ 

In 1903 the question again came before the Senate, and the 
judgment was almost unanimously as before. Senator Tillman 
said: "We had the Paris treaty or the Spanish or Philippine 
treaty negotiated by Senators whose votes, no doubt, were influ- 
enced by the fact that they were on that commission. I do not 
see why we should palter with this thing any longer. Probably 
we cannot convince the Executive that this practise is improper 

^^ Memoirs of John Quincy Adams, TV, 72. Compare the attitude of 
Bayard and Clay in 1813. Supra, note 43a. 

47 Statement of Senator Hale, in U. S. Senate, Feb. 26, 1903, Cong. Eeo- 
ord, 57 Cong., 2 Sess., 2695. The senators nevertheless served, their posi- 
tion being stated by Senator CuUom as follows : ' ' We went out by appoint- 
ment of the President; but there was a doubt about it, and the Judicial 
Committee of the Senate, in view of the doubtful attitude which we occu- 
pied as receiving appointments from the President while being members of 
the Senate, thought it best not to act upon our confirmation at all; and 
they were not acted upon. We were never confirmed by the Senate as a 
matter of fact." Ibid., 2695. 

48 Ibid., 2695, 2698. 



242 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [242 

and contrary to the will of the Senate, unless it is forbidden by- 
law." He therefore offered an amendment to the provision un- 
der discussion providing, "that in making appointments to any- 
such commission no Senator or Member of the House shall be 
eligible. "*9 

Altho the amendment was stricken out on a point of order, 
Senator Hale protested vigorously against the practise ; Senator 
Bacon said it was ' ' distinctly in opposition to the express policy, 
if not the express command of the Constitution of the United 
States;" Senator Hoar concurred in this view, and in addition 
stated that "hardly a more dangerous practice can be conceiv- 
ed than this one ; ' ' and Senator Allison said, ' ' I am in sympathy 
with the general suggestion. . . I do not believe a Senator or 
Eepresentative should be appointed."^" Senators Foraker and 
Teller were not ready to restrict senators from serving on such 
commissions under all circumstances, but thought the practise 
as a rule ' ' reprehensible. " ^^ Of all those who participated in 
the discussion, only Senators Aldrich, Piatt (Connecticut), and 
McComas defended the practise, and opposed any limitation on 
such service by members of the Senate.^^ 

It would therefore seem that the recent outbursts of criticism 
against President Wilson, in the Senate and elsewhere, for his 
failure to appoint members of that body to the peace commission, 
have had little substantial basis, and that, as a matter of 
fact, while criticism of the personnel of the commission might 
be justified on other grounds, that based on any constitutional 
or inherent right of the Senate to representation on such com- 
mission is condemned, both by the Constitution and by the un- 
prejudiced opinion of the Senate itself. 

In the second place, the President has entire control of the 
peace negotiations on the part of the United States. He lays 
down the principles that are to form the basis of negotiation, he 

49 Cong. Becord, 57 Cong., 2 Sess., 2696. The provision under consid- 
eration was one in the Sundry Civil bill authorizing the appointment of a 
commission to negotiate concerning rates of exchange between silver and 
gold using countries. 

5olMd., 2695, 2696, 2697, 2698. 

51 Ibid., 2696, 2697. 

52 Ibid., 2696, 2698. Apparently the positive assurance by Senator Aid- 
rich that no such appointments would be made in the case under considera- 
tion had a great deal to do with the abandonment of a specific prohibition. 



243] POWERS WITH REGARD TO A TREATY OF PEACE 243 

determines whether tO' yield or to stand firm on a disputed point, 
and he decides the wisdom and expediency of compromises. The 
power and responsibility of the President in these respects are 
the same, whether he directs the negotiations from Washington, 
as did McKinley in 1898, or himself participates in the peace 
conference, as did Wilson in 1919. His power is only the more 
strikingly apparent in the latter case. 

President McKinley was constantly in touch with the peace 
commissioners at Paris in 1898, and did not hesitate to make new 
demands and impose additional conditions during the progress of 
the negotiations, even tho he was not personally present. With 
regard to the disposition of the Philippines, for example, con- 
cerning which the Spanish commissioners had expected an op- 
portunity to negotiate. President McKinley 's original instruc- 
tions were to demand the cession of the island of Luzon only. 
Later, however, additional instructions were sent that "the ces- 
sion must be of the whole archipelago or none. The latter is 
wholly inadmissible, and the former must therefore be required. ' ' 
The American commission was divided as to the wisdom and jus- 
tice of this demand,"^ and sought, moreover, to rest the claim of 
the United States to any part of the Philippines on the grounds 
of indemnity, the welfare of the islands, the "broken power of 
Spain, ' ' and the ' ' anarchy ' ' that would result from our complete 
withdrawal ; while the President apparently desired to press the 
claim "by right of conquest," holding that the conquest of the 
entire archipelago had been accomplished by Dewey's destruc- 
tion of the Spanish fleet in Manila Bay. In both matters, the 
commission yielded, of course, to the views of the President.^* 
President Wilson's "domination" of the peace commission of 
1919 was not more complete, nor is there anything improper about 

53 See For. Bel. 1898, 932-935, 945-948. 

54 Benton, International Law and Diplomacy of the Spanish- American 
War, 241, 243 ; See For. Bel. 1898, 935, 937, 940, 941. A recent interesting 
explanation of President McKinley 's demand for the whole of the Philip- 
pines is to the effect that while his mind was not yet made up on the point, 
he received a communication from Lord Salisbury warning him that Ger- 
many was preparing to take over the islands if the United States with- 
drew, that such a step would probably precipitate a world war, and that 
in the interests of peace and harmony it would be best for the United 
States to retain the whole group. Latane, From Isolation to Leadership, 
85. 



244 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [244 

such domination, since it is the President who is alone respon- 
sible for the results of the negotiations. 

The Senate has, of course, the right to "advise and consent" 
to all treaties, and that has sometimes been interpreted to mean 
that the Senate has a right to ''advise" and to be consulted be- 
fore or during the course of the negotiations. There have been 
a few occasions upon which the President has sought the pre- 
vious advice of the Senate, or has informed that body as to pend- 
ing negotiations.^^ President Polk in 1846 referred to that prac- 
tise as "eminently wise," and said that since the Senate is a 
branch of both the treaty-making and war-making powers, "it 
may be eminently proper for the Executive to take the opinion 
and advice of that body in advance upon any great question 
which may involve in its decision the issue of peace or war. ' ' ^^ 

That practise has, however, been only rarely resorted to in 
later times,^^ and generally the "advice" of the Senate, as well 
as its ' ' consent, ' ' has been given only after the negotiations have 
been completed and the final treaty laid before it by the Presi- 
dent. There has been even less disposition to interpret that 
phrase ("by and with the advice and consent of the Senate") 
as giving the Senate any right to participate as a body in the 
negotiations, or to offer its advice as to the course and subject- 
matter of the negotiations. The determination of those has been 
generally held to be the function of the President alone, and only 
recently has there been any serious attempt to assert power on 
the part of the Senate to interfere or to interject its "advice" 
during the course of important treaty negotiations, especially 
those for the conclusion of peace. 

Such an attempt was made, however, during the recent treaty 
negotiations at Paris, when Senator Knox, on June 10, 1919, in 
an attempt to force the separation of the covenant of the League 
of Nations from the treaty of peace then being negotiated, pro- 
posed a resolution declaring, among other things, that the Senate 

55 For a list of these, see Finley and Sanderson, The American Exemir 
tive amd Executive Methods, 280-282. 

56 Message to Senate, June 10, 1846. Richardson, op. dt., IV, 449. 

57 It is significant that President Wilson, in announcing his famous 
"fourteen points" as the necessary conditions of peace, addressed Con- 
gress as a whole, and not the Senate alone. Address to Congress, Jan. 8, 
1918. McKinley, Collected Materials for the Study of the War, 20-22. 



245] POWERS WITH REGARD TO A TREATY OP PEACE 245 

of the United States, "being a coequal part of the treaty mak- 
ing power of this government and therefore coequally responsible 
for any treaty which is concluded and ratified," was "deeply con- 
cerned ' ' over the treaty under negotiation ; that it would regard 
a treaty confined to ' ' the attainment of those ends for which we 
entered the war," as "fully adequate for our national needs;" 
that the conclusion of a "full and complete peace" was the para- 
mount, if not the sole duty of the peace conference; that the 
question of a League of Nations should be reserved for "future 
separate and full consideration" by the people of any nation; 
and that the adoption by the peace conference of "the foregoing 
reasonable limitations and positions" would facilitate the early 
acceptance of the treaty by the Senate.^® 

This attempt to inject the advice of the Senate into the peace 
conference at Paris, and to influence the course of the negotia- 
tions, was directly contrary, not only to the traditional view that 
treaty negotiation is a function belonging solely to the Presi- 
dent, but also to the expressed views of Senate leaders on former 
occasions that the Senate should hold itself distinctly apart from 
these negotiations, and only take action when the treaty is com- 
pleted and laid before it, or when its advice is sought by the 
President. 

Thus, Senator Spooner, generally considered to be one of the 
best constitutional lawyers of his time, said with regard to this 
point : * ' The Senate has nothing whatever to do with the nego- 
tiation of treaties or the conduct of our foreign intercourse and 
relations save the exercise of the one constitutional function of 
advice and consent which the Constitution requires as a preced- 
ent condition to the making of a treaty. . . From the foun- 
dation of the Government it has been conceded in practice and 
in theory that the Constitution vests the power of negotiation 
and the various phases — and they are multifarious — of the 
conduct of our foreign relations exclusively in the President. And 
he does not exercise that constitutional power, nor can he be 
made to do it, under the tutelage or guardianship of the Senate 
or of the House or of the Senate and House combined. ' ' ^* 

Likewise, Senator Lodge, who recently has bitterly criticized 

58 See text of resolution in Cong. Eecord, 66 Cong., 1 Sess., 935. The 
resolution was, however, never acted upon. 

59 Cong. Becord, XL, Pt. 2 (59 Cong., 1 Sess.), 1418 (Jan. 23, 1906). 



246 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [246 

President Wilson for "ignoring" the Senate in negotiating the 
Treaty of Versailles, had this to say in 1906 : ' ' No one, I think, 
can doubt the absolute power of the President to initiate and 
carry on all negotiations. . . The action of the Senate be- 
comes operative and actually effective only when a treaty is act- 
ually submitted to it. . . We (the Senate) have no possible 
right to break suddenly into the middle of a negotiation and de- 
mand from the President what instructions he has given his rep- 
resentative. That part of the treaty making is no concern of 
ours. . . It is a mere invasion of the powers and rights of the 
President if we are to plunge in at a stage of the negotiations 
where we have no business whatever and demand from him the 
instructions which he has given to his properly appointed rep- 
resentatives. Wlien the treaty made by those representatives 
comes before us, then is the time, and not before, in which we 
can properly ask for information in regard to all that has led 
up to it."*'" 

In the light of these strong expressions of opinion, it would 
seem that much of the recent criticism of President Wilson 
by Senator Lodge and his followers is unjustified, especially in so 
far as it is based on the relative constitutional position and 
powers of the Senate and the Executive in regard to the making 
of treaties. However overbearing and tactless the President 
may have been in his relations to the Senate, clearly he has at 
no time in his negotiation of the Treaty of Versailles exceeded 
the traditional view of his constitutional powers nor encroached 
on those of the Senate. 

The power of the President with regard to the conclusion of 
peace does not end with the negotiation and signature of the 
treaty.®^ The Senate must give its consent before the treaty 
can become fully effective and the state of war be actually ter- 
minated, but the fact that the Senate "advises and consents" 
to the ratification of a treaty is not conclusive, as the President 
alone can perform the final act of ratification. The Senate may 
amend a treaty, but the President may decline to accept these 

eoCong. Becord, XL, Pt. 2 (59 Cong., 1 Sess.), 1470. 

61 The mere signing of the treaty is of some importance, since it operates 
to bring about a suspension of hostilities, if that has not already been done 
by a separate armistice or protocol. Hall, International Law, 554-555; cf. 
Eaver v. Yalcer, 9 Wall., 32 (1869). 



247] POWERS WITH REGARD TO A TREATY OF PEACE 247 

changes and refuse to ratify the amended treaty. He may with- 
draw a treaty from the Senate at any time during its consider- 
ation, and he may, if he chooses, even decline to ratify a treaty 
that has been approved by the Senate in its original form. In 
other words, while the "advice and consent" of the Senate is a 
condition precedent to ratification, it is not mandatory — the 
President has the final word.^^ 

It is therefore within the power of the President to determine 
the actual date for the termination of a war and the conclusion 
of peace. That is done by means of a proclamation, announcing 
the effectiveness of the treaty or the exchange of ratifications, 
in the case of a foreign war, or merely announcing the termina- 
tion of armed resistance, in the case of a civil war. The actual 
exchange of ratifications, or the actual suppression of rebellion, 
apparently are not enough ; there must be an official declaration 
of the event by the President. ' ' The war commences when gov- 
ernment officially says it has commenced, and it ends when 
government officially says it has ceased to exist ;" ^^ and 
"government" in the latter case means the President.*'* 

Thus, the War of 1812 was officially terminated on February 
18, 1815, the war with Mexico on July 4, 1848, and the war with 

62Crandall, Treaties: Their Making and Enforcement, 97. "The Presi- 
dent is so supreme under the Constitution in the matter of treaties, exclud- 
ing only the Senate's ratification, that he may negotiate a treaty, he may 
send it to the Senate, it may receive by way of 'advice and consent' the 
unanimous judgment of the Senate that it is in the highest degree for the 
public interest, and yet the President is as free when it is sent back to the 
White House with resolution of ratification attached, to put it in his desk 
never again to see the light of day as he was free to determine in the first 
instance whether he would or would not negotiate it. That power is not 
expressly given to the President by the Constitution, but it inheres in the 
executive power conferred upon him to conduct our foreign relations, and 
it is a power which inheres in him as the sole organ under the Constitution 
through whom our foreign relations and diplomatic intercourse are con- 
ducted." Senator John C. Spooner, in TJ. S. Senate, Jan. 23, 1906. Cong. 
Beom-d, XL, Pt. 2 (59 Cong., 1 Sess. ), 1419. 

63 Grlenn, The Army and the Law, 64. 

64 " It is necessary to refer to some public act of the political depart- 
ments of the government to fix the dates; and for obvious reasons, those of 
the executive department. . . must be taken." The Protector, 12 Wall., 
700, 702 (1871). Of course the Court was here referring particularly to a 
civil war. 



248 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [248 

Spain on April 11, 1899, because of the President's proclamation 
of that date in each particular case. Only in the case of the war 
with Spain did that date correspond with the date of the actual 
exchange of treaty ratifications.®^ So also the Civil War is de- 
clared by the courts to have ended on April 2, 1866, with respect 
to all the insurrectionary states except Texas, and on August 
20, 1866, with respect to Texas, because of the proclamations of 
the President declaring armed resistance at an end as of those 
dates, altho the last rebel army surrendered in May, 1865.^® 

Recent war legislation also shows clearly that Congress con- 
templated that the date for the termination of the state of war 
with Germany and Austria-Hungary should be determined by 
proclamation of the President. Thus, there were express pro- 
visions declaring that ''the fact and date of such termination 
shall be ascertained and proclaimed by the President," or that 
the end of the war "shall be deemed to mean the date of proc- 
lamation of exchange of ratifications of the treaty of peace. ' ' In 
other cases, it was provided that the acts should terminate a cer- 
tain time ' ' after a final treaty of peace is proclaimed, " or " fol- 
lowing the date of the proclamation by the President of the ex- 
change of ratifications of the treaty of peace," or similar lan- 
guage.®'' 

The powers of the President with regard to the conclusion 
of peace are therefore very extensive and quite definite. He may, 
on his own authority, undertake preliminary measures and en- 
ter into preliminary agreements for the termination of hostil- 
ities ; through these preliminary measures, he may to a consider- 
able extent lay down the conditions of permanent peace and 
commit the nation to them. With regard to the definitive treaty 
of peace, the President has entire control of the personnel of the 
peace commission, and entire control of the peace negotiations; 

65 For the proclamations, see Eichardson, op. cit., I, 560'; IV, 627; For, 
Bel. 1898, 831. In the first case, the treaty was signed Dee. 24, 1814, and 
ratifications exchanged Feb. 17, 1815; in the second, the first treaty was 
concluded Feb. 2, 1848, and ratifications of the amended treaty exchanged 
May 30; in the last case, the treaty was signed Dec. 10, 1898, and approv- 
ed by the Senate Feb. 6, 1899. 

66 The Protector, 12 Wall., 700, 702 (1871) ; Lamar v. Browne, 92 U. S., 
187, 193 (1875) ; Birkhimer, Military Government and Martial Law, 367- 
368; Eichardson, op. cit., VI, 429-432, 434-438. 

e7 Supra, 231. 



249] POWERS WITH REGARD TO A TREATY OF PEACE 249 

he is required to obtain the "advice and consent" of the Senate 
before putting a treaty of peace into final effect, but when that 
is obtained, he is again absolute as to the final acceptance of the 
treaty, and as to the time for its becoming effective. 



CHAPTER XV 

POWERS WITH REGARD TO RECONSTRUCTION 

With the termination of the emergencies of war, it might be 
expected that the exercise of the ''war powers" should imme- 
diately cease. Ex-Justice Hughes thus expressed the view, shortly- 
after the signing of the armistice at the close of the recent war, 
that in the harnessing of our strength for war we were acting 
' ' under the Constitution and not in violation of it, ' ' but that to 
use the war powers to control peace conditions was a proceed- 
ing * ' essentially vicious and constituting the most serious offense 
against our institutions. ' ' ^ Elihu Root, in his argument before 
the Supreme Court in the recent prohibition cases, likewise con- 
tended that the right to exercise the war powers no longer existed 
when the war emergency had passed. "The question," he said, 
"is much confused by a certain vague and colloquial use of the 
term ' war powers. ' War confers no powers upon Congress. The 
powers are all in the Constitution of the United States. The con- 
dition of war does create exigencies which make appropriate the 
exercise of powers not otherwise existing. . . On the other 
hand, when the war has progressed to an extent that the enemy 
has been forced into submission and there is no longer an army 
or navy to be raised and maintained the power ends because the 
exigency no longer exists. ' ' ^ 

It is generally recognized, however, that the return to normal 
peace conditions can be made only gradually, that there must 
be a period of readjustment and reconstruction during which cer- 
tain of the war powers must of necessity continue to be exer- 
cised. Thus Mr. Hughes admitted, in the speech quoted above, 
that "whenever, during the war, extraordinary powers were fit- 
tingly exercised and governmental control was assumed for war 

1 N. Y. Times, Nov. 29, 1918. 

2 IMd., Nov. 19, 1919. 

250 



251] POWERS WITH REGARD TO RECONSTRUCTION 251 

purposes, the readjustment to conditions of peace must of course 
be effected gradually and with the circumspection essential to 
the protection of all the public and private interests involved." 
Professor Willoughby also remarks that ' ' the power to wage war 
carries with it authority not only to bring it to a full conclusion, 
but, after cessation of active military operations, to take meas- 
ures to provide against its renewal ; " ^ and the Supreme Court 
long ago held that "the power (to carry on war) is not limited 
to victories in the field. . . It carries with it inherently the 
power to guard against the immediate renewal of the conflict, 
and to remedy the evils which have arisen from its rise and 
progress. ' ' * 

Altho this opinion of the court referred particularly to the 
conditions resulting from the Civil War, there would here seem 
to be some warrant for the belief that the President, who as Com- 
mander-in-Chief has the power of waging war, is also entrusted 
with such powers as may be necessary to effect a complete return 
to the normal conditions of peace. 

Some of these powers, such as the resumption of friendly re- 
lations with the opposing belligerent, may result from an ordin- 
ary constitutional function, whose exercise in this case is made 
necessary in order to completely restore the status of peace.^ In 
other cases, however, the termination of war and the consequent 
problems of reconstruction may bring about new situations which 
can only be met by the assumption of unusual authority and the 
exercise of extraordinary powers. Thus, the measures under- 
taken by Presidents Lincoln and Johnson in reorganizing and 
reconstructing the governments of the insurrectionary states of 
the South by executive orders and through military com- 
manders,^ were upheld by the Supreme Court as a legitimate 
exercise by the President of his powers as Commander-in-Chief, 
subject to final determination by Congress.^ 

3 Constitutional Law, II, 1212. 

^Stewart v. Eahn, 11 Wall., 493, 507 (1870). 

5 That is, the appointment and reception of accredited diplomatic agents. 

6 See Dunning, Reconstruction: Political and Economic, 35-39. 

■r Texas v. White, 7 Wall., 700, 730-731 (1868). However, the claim as- 
serted by both Lincoln and Johnson, that the President had a right to de- 
termine the conditions upon which these reconstructed states might be fully 
restored to their former place in the Union, was successfully disputed by 
Congress. Hosmer, Outcome of the Civil War, 135-144, 225-227; Dunning, 
op. cit., esp. chs. 4, 6. 



252 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [252 

The successful conclusion of a war frequently results in the ac- 
quisition of additional territory, and the determination of the 
status, rights, and government of such acquired territory is one 
of the problems of the reconstruction period. It is a well-rec- 
ognized constitutional principle in the United States that, when 
territory is annexed by the United States or comes in any man- 
ner under its jurisdiction, Congress has an absolute right, from 
the moment of such acquisition, to determine the political rights 
and governmental organization of that territory.^ In the case of 
territory acquired by purchase or other peaceful means, Congress 
has generally seen fit to exercise that right by conferring tem- 
porary but complete governmental power on the President, until 
it can itself provide for a definite system of government. 

Thus, after the cession of Louisiana, an act was passed provid- 
ing that, until Congress should otherwise provide, "all the mili- 
tary, civil, and judicial powers exercised by the officers of the 
existing government of the same, shall be vested in such person 
or persons and shall be exercised in such maimer as the Presi- 
dent of the United States shall direct. ' ' ^ Under this provision, 
the President exercised complete governmental authority over 
Louisiana until October 1, 1804, when the territorial government 
created by Congress went into effect.^" In almost identical lan- 
guage, Congress likewise vested the temporary government of 
Florida in the President," all the powers of which were exer- 
cised by him through General Jackson as governor and through 
other subordinates until Florida was made a territory in 1822.^^ 
Alaska, acquired in 1867, was governed under the sole authority 
of the President until 1900, when Congress adopted a civil code 
and provided a form of civil government for that region ; ^^ 

8 Willougliby, op. dt., I, 403. 

9 Act of Oct. 31, 1803. Annals of Cong., 8 Cong., 1 Sess., App., 1245. 
Objections were made to this grant of power on the ground that the com- 
bination of all governmental powers in one man was unconstitutional, and 
that it made the President a despot. Thomas, Military Government in 
Newly Acquired Territory of the United States, 30-31; McMaster, History 
of the People of the United States, III, 9-10. 

10 Act of Mar. 26, 1804. Annals of Cong., 8 Cong., 1 Sess., App., 1293. 

11 Acts of Mar. 3, 1819 and Mar. 3, 1821, Ibid., 15 Cong., 2 Sess., II, 
App., 2534; 16 Cong., 2 Sess., App., 1809. 

12 Act of Mar. 30, 1822. Ibid., 17 Cong., 1 Sess., II, App., 2578; cf. 
Thomas, op. cit., 65-70, 95, 98. 

13 Act of June 6, 1900. 31 Stat, at L., 321. The President exercised his 



253] POWERS WITH REGARD TO RECONSTRUCTION 253 

while Hawaii was governed by the President for more than two 
years under the authority of the joint resolution of annexation.^* 
The government of the Panama Canal Zone, established and car- 
ried on by the President at first under the authority of Con- 
gress/^ was, upon the failure of Congress to continue that au- 
thority, nevertheless continued by authority of several executive 
orders,^^ until congressional sanction was again given in 1912.^^ 
' ' Beginning with a government which might be termed political, 
it ended as a government by executive order, controlled by one 
man answerable only to the President of the United States, 
through the Secretary of War. ' ' ^^ 

While the status and government of acquired territory are 
clearly subject to the jurisdiction and control of Congress, it 
would seem that another constitutional principle may be derived 
from these examples, namely, that in the absence of congres- 
sional legislation, the President may exercise temporary govern- 
mental power on his own authority. In fact, the presumption 
seems to have existed from the time of the acquisition of Lousi- 
ana that the President could exercise such authority by virtue 
of his powers as Commander-in-Chief.^^ 

authority in Alaska principally through the army commanders and through 
the Secretary of the Treasury (Alaska having, by executive order, been 
made a revenue district). Thomas, op. cit., 279-280, Alaska was definitely 
organized as a territory by Act of Aug. 24, 1912. 37 Stat, at L., 512. 

14 Joint Eesolution of July 7, 1898, 30 Stat, at L., 750. A territorial 
government was established Dec. 3, 1900, by Act of Apr. 30, 1900. 31 ibid., 
141. 

15 Acts of June 28, 1902 (Spooner Act) and Apr. 28, 1904. 32 Stat, 
at L., 481; 33 ibid., 429. The former authorized the President to estab- 
lish judicial tribunals in territory acquired for the canal, in order to en- 
force the rules and regulations which he might deem necessary and proper 
for the preservation of order and public health; which authority was con- 
sidered sufficient to permit the establishment of "such form of govern- 
ment as the President might determine." The latter act provided that the 
President should be vested with all the powers of government until the ex- 
piration of the 58th Congress, unless other provisions for a government 
were sooner made. See Goethals, Government of the Canal Zone, 11-20. 

16 Executive orders of Apr. 1, 1905; Nov. 17, 1906; April, 1907; Jan, 
8, 1908. Goethals, op. cit., 43-50. The 58th Congress adjourned without 
making any further provision for the government of the Canal Zone. 

17 Panama Canal Act of Aug. 24, 1912. 37 Stat, at L., 560. 

18 Goethals, op. cit., 51, 

19 Willoughby, op. cit., I, 390 ; Thomas, op. cit., 31-32, 



254 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [254 

In the case of territory acquired after conquest and occupa- 
tion in war, the power of Congress likewise constitutionally 
attaches from the moment of acquisition. However, the problem 
of the temporary government of such territory, in the absence of 
provision by Congress, is somewhat different from that in the 
case of territory acquired peacefully. It involves the question 
of the continuance of the military government already existing 
under the authority and direction of the President, or of the 
power to set up some other form of government under other 
authority. 

President Polk, after the ratification of the treaty of peace 
with Mexico in 1848, at first held that he had no power to con- 
tinue the governments established by him over New Mexico and 
California during the war, but that upon the definitive conclu- 
sion of peace, these governments "necessarily ceased to exist." 
He also held that he had no power to establish other temporary 
governments without the sanction of Congress. ' ' The war with 
Mexico having terminated," he said, ''the power of the Execu- 
tive to establish or continue temporary civil governments over 
these territories, which existed under the laws of nations whilst 
they were regarded as conquered provinces in our military oc- 
cupation, has ceased. By their cession to the United States 
Mexico has no longer any power over them, and until Congress 
shall act the inhabitants will be without any organized govern- 
ment. " ^" In order to prevent anarchy and confusion, the 
President therefore recommended the immediate establishment 
of territorial governments in New Mexico and California, he 
himself proposing in the meantime merely to maintain a small 
military force in those regions in order to "hold the country 
and protect the inhabitants against Mexican, Indian, or other 
enemies who might disturb them. ' ' ^^ 

The failure of Congress to provide for these newly acquired 
territories before adjournment, seemed to make necessary the 
establishment of a government by some other authority. Sen- 
ator Benton, in a letter of August 27, 1848, addressed to the 
people of California, advised them to meet in convention, form 
a "cheap and simple" government, and take care of them- 

20 Messages of July 6 and July 24, 1848. Eichardson, Messages and 
Papers of the Presidents, IV, 589, 596. 

21 Eichardson, op. cit., IV, 589; Diary of James K. Polk, IV, 136. 



255] POWERS WITH REGARD TO RECONSTRUCTION 255 

selves until Congress should act. President Polk, considering 
this move ''offensive" and "arrogant," and principally intend- 
ed to make Colonel John C. Fremont (Benton's son-in-law) gov- 
ernor of an independent government of California, felt that some 
greater exercise of Executive power was necessary, if confusion, 
anarchy, and possible revolution were to be avoided. He there- 
fore summoned his Cabinet to consider the ''question of diffi- 
culty," namely, "what Government existed over the country 
until Congress should act, and what power to govern it the Exe- 
cutive possessed," and an agreement was reached that the tem- 
porary military governments established during the war should 
be regarded as governments de facto, still existing by the pre- 
sumed consent of the people, and to which the people should be 
advised to submit.^^ 

Accordingly, Secretary of State Buchanan, in a letter of Oc- 
tober 7, 1848, drew up instructions to the people of California, 
in which he expressed the position of the Administration as fol- 
lows : ' ' The termination of the war left an existing Government, 
a Government de facto, in full operation ; and this will continue 
with the presumed consent of the people, until Congress shall 
provide for them a territorial Government. The great law of 
necessity justifies this conclusion. The consent of the people is 
irresistibly inferred from the fact that no civilized community 
could possibly desire to abrogate an existing Government, when 
the alternative presented would be to place themselves in a state 
of anarchy beyond the protection of all laws , and reduce them 
to the unhappy necessity of submitting to the dominion of the 
strongest. ' ' ^^ 

Similar instructions were drawn up for the people of New 
Mexico by Secretary of War Marcy,^* and President Polk him- 
self announced the new policy to Congress in December, stating 
that "the very limited power possessed by the Executive has 
been exercised to preserve and protect them from the inevi- 
table consequences of a state of anarchy. The only government 

22 See Thomas, op. cit„ 130; Diary of James K. Polk, IV, 136-137, 140- 
143. 

23 Buchanan to Mr. Voorhies, agent of the Post-Office Department in 
California. Moore, Worlcs of James Buchanan, VIII, 211-216, esp. 213; 
cf. Diary of James K. Folic, IV, 143, 146-149. 

24 Thomas, op. cit., 132-133. 



256 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [256 

which remained was that established by the military authority 
during the war. Regarding this to be a de facto government, 
and that by the presumed consent of the inhabitants it might be 
continued temporarily, they were advised to submit to it for the 
short intervening period before Congress would again assemble 
and could legislate on the subject. ' ' ^^ 

The same doctrine concerning the governmental power of the 
President was asserted also by the succeeding administration,^^ 
but there seemed to be a distinct effort on the part of the Presi- 
dent in each case to emphasize the civil rather than the military 
authority of the governments so recognized as existing by neces- 
sity and presumed consent. The authorities apparently believed 
that "at the conclusion of the war the military government be- 
came merged into a sort of de facto civil government." Thus, 
President Polk selected General P. F. Smith as commander in 
California, because he was "a man of education and intelligence 
and possessed of much knowledge of civil government as well as 
of military command, and it was desirable to have such an offi- 
cer in chief command in California in the present anomalous 
state of that country. ' ' ^'' 

During the administration of President Taylor, General Riley, 
then commanding officer in California, issued a proclamation 
(June 3, 1849), in which he sought to correct the impression 
that the de facto government was still military in character. 
"The military government ended with the war," he said, "and 
what remains is the civil government, recognized in the existing 
laws of California. Although the command of the troops in this 
department and the administration of civil affairs in California 
are, by the existing laws of the country and the instructions of 
the President of the United States, temporarily lodged in the 
hands of the same individual, they are separate and distinct. "^^ 
President Fillmore likewise held that the civil and military de- 
partments in these temporary governments should be kept sepa- 
rate and distinct, and ordered the military governor of New 

25 Message of Dec. 5, 1848. Eichardson, op. cit., IV, 638. 

26 Thomas, op. cit., 211. 

27 Diary of James K. Polk, IV, 149. Apparently Gen. Smith never acted 
as civil governor, however, but only as the senior commanding officer for 
a short time. Thomas, op. cit., 212. 

28 Thomas, op. cit., 211-212. 



257] POWERS WITH REGARD TO RECONSTRUCTION 257 

Mexico not to interfere with civil and political affairs. "Tem- 
porary departure from this principle may be required occasion- 
ally, but it should close with the passing of the necessity. No 
necessity now seems to exist in New Mexico. ' ' ^^ 

While the President himself in these early cases based his claim 
to temporary governmental power upon the doctrine of neces- 
sity and the presumed consent of the people rather than upon 
his "war powers," the Supreme Court seemed to take the view 
that the war powers might continue to be the basis for the exer- 
cise of such governmental power even after the conclusion of 
peace. The Court held that the restoration of peace did not, as 
a matter of course, terminate a military government established 
over conquered territory, but that an inference that it was to 
continue subsequent to the conclusion of peace arose from the 
failure of the President or Congress to dissolve it. It therefore 
sustained the right of the President, in the exercise of his pow- 
ers as Commander-in-Chief, not only to establish governments 
over conquered territory, but also to continue these govern- 
ments in existence after the termination of the war, until Con- 
gress should act.^*^ 

Whether acting as civil or military governor, however, the 
military commander, as the President's most immediate repre- 
sentative, apparently may exercise as absolute powers in these 
de facto governments as in the military governments during the 
war-time occupation.^^ In New Mexico, Governor Vigil con- 
tinued in office as civil governor for some time after the ratifi- 
cation of the treaty of peace, but Colonel John Price, the mili- 
tary commander, exercised the real authority. He approved, 
by special order, the acts passed by the legislature elected under 
Kearney's organic law, and even abolished the offices named in 
the statutes (secretary, district attorney, and marshal). ^^ Col- 
onel John Munroe, when he became military commander in New 
Mexico, assumed both the title and functions of "civil and mili- 
tary governor," and continued to act as such until New Mexico 
became a territory in 1851.^^ Likewise in California, the mili- 

29 Thomas, op. cit., 146. 

30 Cross V. Harrison, 16 How., 164, 190, 193, 195 (1853); Leitensdorfer 
V. Webb, 20 How., 176, 178 (1857). 

31 Cf. supra, ch. IX. 

32 Thomas, op. cit., 129 ; cf. supra, 161. 

33 Thomas, op. cit., 147. 



258 WAE POWERS OF THE EXECUTIVE IN UNITED STATES [258 

tary commander issued orders and decrees having the force of 
law ; appointed special tribunals ; defined the jurisdiction of the 
courts ; organized a supreme court ; appointed and removed offi- 
cials; and, finally, ordered an election for delegates to a consti- 
tutional convention, submitted the constitution to the people, 
and declared it ordained and established nearly a year before the 
state was actually admitted by Congress.^* 

In the case of the territories acquired as a result of the Span- 
ish-American War, Congress likewise failed to make immediate 
provision for their government, and the President therefore con- 
tinued to exercise all the powers of government over those terri- 
tories for some considerable time after the definitive conclusion 
of peace with Spain. Thus, in Porto Rico the military govern- 
ment instituted on October 18, 1898, continued to operate under 
the sole authority of the President until May 1, 1900, when it 
was superseded by the civil government established under the 
provisions of the Foraker Act.^^ The military governor, during 
that period, exercised absolute power over the affairs of the 
island, maintaining law and order, reorganizing the judiciary, 
reforming the criminal procedure, providing a new system of 
taxation, and gradually introducing free and self-governing in- 
stitutions.^^ In the words of a native writer, the military gov- 
ernor, as the representative of the President, ''had absolute and 
complete control, not only over the army, but also over the civil 
population of the island, and whatever orders he saw fit to issue 
had the force of law. ' ' ^^ 

34 Thomas, op. cit., 229-234, 264-265, 269, 273-275. Gen. Eiley yielded his 
authority on Dec. 20, 1849, to Peter Burnett, the governor elected under this 
constitution, altho California was not admitted tiU Sept. 9, 1850. 

38 See Eowe, The United States and Porto Bico, 118-128, 190-191, 206- 
208. 

37 Pedro Capo-Kodriguez, in Am. Jour. Int. Law, IX, 904. In connec- 
tion with the transfer of the government from the military to the civil 
authorities, there occurred an interesting illustration of the power of the 
military governor to meet an extraordinary situation. The civil officials 
provided for in the Foraker Act not having all been able to qualify by the 
time set for the transfer, and the military officers being forbidden by 
statute to hold civil office, the military governor on April 30 simply re- 
organized the military government so as to conform to the plan of the 
Foraker Act and appointed civilians to fill the offices until those selected 
by the President could qualify. See Eowe, op. cit., 134-136; Thomas, op. 
cit., 310. 



259] POWERS WITH REGAED TO RECONSTRUCTION 259 

Cuba, tho not ceded to the United States by the treaty of 
peace, was likewise kept under military occupation from the 
time of its seizure in 1898 until the inauguration of the republic 
on May 20, 1902; and during that time the President, through 
the Secretary of War and the military governor, administered 
the affairs of that island at his discretion. The suffrage quali- 
fications were determined upon by ''general agreement" of the 
military governor with "leading Cubans," while election laws 
and lOther statutes were promulgated, and the self-governing 
powers of the municipal governments were enlarged or the muni- 
cipalities suppressed altogether by military order. ^^ Finally, 
when the Executive deemed the time ripe for complete self-gov- 
ernment, the military governor summoned a constitutional con- 
vention, determined the number and distribution of delegates, 
carefully instructed them as to their duties,^^ and saw to it that 
the provisions suggested by the Secretary of War as the basis 
for the future relations between Cuba and the United States,*" 
were adopted by the convention.*^ He also passed upon the 

38 Of the 138 municipalities in Cuba, 56 were suppressed * ' on the ground 
that they had neither the resources nor population sufficient to maintain 
a well organized municipality." Gen. Leonard Wood, "The Military Gov- 
ernment of Cuba," Ann. Am. Acad., XXI, 160-161. 

39 See order of July 25, 1900, calling the election for delegates ; also 
the opening statement of the military governor to the convention, Nov. 
5, 1900, in which he said: "Under the order pursuant to which you have 
been elected and convened you have no duty and no authority to take part 
in the present government of the island. Your powers are strictly limited 
by the terms of that order." Eoot, Military and Colonial Policy of the 
United States, 195, 196. 

40 Instructions of Secretary of War Eoot to Maj. Gen. Wood, Feb. 9, 
1901. Root, op. cit., 208-212. With regard to these provisions, Secretary 
Eoot instructed Maj. Gen. Wood as follows: "These provisions may not, 
it is true, prove to be in accord with the conclusions which Congress may 
ultimately reach when that body comes to consider the subject, but as, 
until Congress has acted, the Executive must necessarily within its own 
sphere be controlled by its own judgment, you should be guided by the 
views above expressed." Ihid., 212. These provisions were', however, em- 
bodied in the famous Piatt Amendment to the Act of Mar. 2, 1901. 31 
Stat, at L., 895, 897. 

41 ' ' On receipt of the instructions by cable I immediately assembled the 
Committee on Eelations to Exist between Cuba and the United States and 
made known to them the five articles or provisions which, in the opinion of 
the Executive branch of the Government, represent the wishes of the Uni- 



260 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [260 

constitution adopted by this convention, and not before it had 
been treated by him "as an acceptable basis for the formation of 
the new government" was the transfer to that new government 
permitted to take place.*^ In effect, the President not only ex- 
ercised all the powers of government over the island of Cuba 
while it was under military occupation, but himself determined 
when and under what conditions such military occupation should 
cease and the troops and authority of the United States be with- 
drawn, the assumption of this authority being upheld by the Su- 
preme Court as a legitimate function of the "political branch" 
of the Government, in this case the Executive.^^ 

In the Philippines, the President likewise carried on the gov- 
ernment for about two years after the definitive conclusion of 
peace, "untrammeled or unaided by any word from Congress." 
Altho Secretary of War Root announced that all formal and 
open resistance to the authority of the United States had termi- 
nated in the spring of 1900,** President McKinley, by virtue 
of his authority as Commander-in-Chief,*^ continued the mili- 
tary governor as the executive authority in the islands, but 
vested the legislative power in a civilian Commission.**' He out- 
lined the duties of this Commission and the general policy to- 
wards the Philippines in elaborate instructions, which came to 
be considered the ' ' organic act of the Philippines, ' ' *^ and under 

ted States in all that pertains to the proposed relations between the Gov- 
ernment of the United States and the people of Cuba. I was particularly 
careful to impress upon them that Congress might in its wisdom insist 
upon different conditions or relations, but that the proposition submitted 
embodied those which in the opinion of the Executive branch of the Govern- 
ment should exist and that they were the only ones which they could at 
present consider." Maj. Gen. Wood to Secretary of War Boot, Feb. 19, 
1901. Boot, op. cit., 186. 

i2lbid., 215. 

^^Neely v. Eenkel, 180 U. S., 109, 124 (1901). 

44 Boot, op. cit., 238. 

45 ' ' The sole power which the President was exercising in the Philip- 
pine Islands was a military power derived from his authority under the 
Constitution as Commander-in-Chief of the Army and Navy." Ibid., 252, 
295. 

46 The second Philippine Commission, appointed Mar. 16, 1900, and com- 
posed of William H. Taft, Dean C. Worcester, Luke E. Wright, Henry C. 
Ide, and Bernard Moses. For the first Commission, see supra, 157, note 
21. 

47 Instructions of Apr. 7, 1900. Boot, op. cit., 287-294. 



261] POWERS WITH REGARD TO RECONSTRUCTION 261 

which more than 400 laws were enacted "by authority of the 
President of the United States" and subject only to the approval 
of the Secretary of War.*^ 

In 1901, however, the President was given express authority 
by Congress to govern the Philippines temporarily,*^ and was 
thus no longer forced to base his actions on his "war powers." 
Under this new authority, the Philippine Commission was con- 
tinued as before, but the military and civil authority in the 
islands were still further separated, the military governor being 
relieved of all his civil duties, and the president of the Commis- 
sion, Mr. Taft, being appointed civil governor, with power to 
exercise the executive authority in civil affairs heretofore exer- 
cised by the military governor.^" The organization of separate 
executive departments and the creation of the office of vice-gov- 
ernor, were further steps in the development of civil govern- 
ment undertaken by the President by virtue of his general pow- 
er as Chief Executive and the authority vested in him by Con- 
gress.^^ 

Finally, the last insurgent leaders having surrendered in 
April, 1902,^2 and the Philippine Commission created by the 
President having been given express legislative sanction and au- 
thority,^^ the President, on July 4, 1902, terminated altogether 
the office of military governor in the Philippines, made the mili- 
tary forces subject to the call of the civil authorities "for the 

48 Root, op. cit., 294-295. ' ' While the President vested and could vest in 
it no greater legislative authority than the military commander previously 
held, it has exercised that authority in accordance with legislative forms." 
lUd., 254. 

49 By the so-called Spooner Amendment to the Act of Mar. 2, 1901, 31 
Stat, at L., 895, 910. 

50 See order of June 21, 1901. Root, op. cit., 262. Taft was inaugurat- 
ed civil governor on July 4, 1901. On the same day Maj. Gen. Chaffee 
succeeded Maj. Gen. MacArthur as military governor, but with duties ap- 
plying only to the unpaeified regions of the Philippines. 

51 Ibid., 262-287. Luke E. Wright was appointed vice-governor, the 
order reading ' ' by virtue of the authority vested in me as President of the 
United States." lUd., 264. 

52 lUd., 316-317. 

53 Philippine Government Act of July 1, 1902. 32 Stat, at L., 691. From 
this time the laws passed by the Philippine Commission were enacted "by 
authority of the United States," instead of "by authority of the Presi- 
dent." Eoot, op. cit., 295. 



262 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [262 

maintenance of law and order and the enforcement of their 
authority, ' ' ^* and thus, in the words of Secretary Root, * ' a com- 
plete system of civil government, built up under the authority 
of the President, was in operation, ready to go on under the au- 
thority of Congress. ' ' ^^ 

In other matters, also, the President may be said to have con- 
siderable power with regard to reconstruction after war. Sever- 
al of the most important war enactments of Congress, conferring 
large powers upon the President during the recent war with 
Germany and Austria-Hungary, show that Congress contemplat- 
ed a period of reconstruction during which the President might 
continue to exercise those war powers and gradually bring about 
an adjustment to the normal conditions of peace. 

Thus, by the terms of the Emergency Shipping Fund Act and 
of the Overman Act, the President was expressly authorized to 
exercise the powers therein granted for a period of six months 
after the termination of the war by the proclamation of a final 
treaty of peace ; while, by the Railway Control Act, he was em- 
powered to continue his control of the railroads for a period of 
one year and nine months after that event.^® The long delay 
in securing the final termination of the state of war made the 
armistice period virtually a period of reconstruction, during 
which President Wilson exercised his war powers as he deemed 
such exercise necessary to bring about the readjustment to nor- 
mal conditions. The control of the railroads was thus continued 
until March 1, 1920, frankly not as a war measure, but " to 
render an adequate and convenient transportation service at 
reasonable cost. ' ' ^'^ 

Similarly, the President revived and exercised his war powers 
under the Food and Fuel Control Act at various times during 
this reconstruction period. Thus, some of the war-time food re- 
strictions, which had been lifted shortly after the signing of the 
armistice, were revived about a year later, and the powers of the 
Food Administrator transferred by executive order to the At- 

54 Order of July 4, 1902. Eoot, op. cit., 317-318. 

55 Ibid., 318. 

56 Acts of June 15, 1917; Mar. 21, 1918 (Sec. 14); May 20, 1918 (Sec. 
1). Wigmore, Source-BooJc of Military Law and War-Time Legislation, 484, 
583, 586. 

57 Statement of Director General Hines. Supra, 216, note 78. 



263] POWERS WITH REGARD TO RECONSTRUCTION 263 

torney-General in an attempt to avert a sugar famine and lower 
the high, cost of living.^^ The war-time powers of the Fuel Ad- 
ministration were likewise revived by executive order of October 
30, 1919, and exercised to meet the situation caused by the coal 
strike of that time, and later (December 10), in that connection, 
virtually transferred to a wage commission of three men.^^ By 
executive order of February 28, 1920, the President again for- 
mally continued the Fuel Administration, "because of the pres- 
ent emergency, and in order to insure an adequate supply and 
equitable distribution, and to facilitate the movement, and to 
prevent locally or generally, scarcity of coal;" and vested its 
powers in a commission of four men.^** Finally, only a month 
later (April 1), President Wilson accepted and affirmed the 
majority report of the commission appointed in December to fix 
miner's wages, and at the same time removed all governmental 
control over the fuel industry, except as to export coal.^^ 

The exercise of these war powers by President Wilson is in 
every instance clearly warranted by the fact of the continuance 
of the state of war. However, but for the unusual and unex- 
pected delay in terminating that state of war, these same prob- 
lems and situations would have arisen during a time of technic- 
al as well as virtual peace, and they seem to demonstrate the 
necessity for an extension of the President's war powers into 
the period of reconstruction and readjustment, in order to meet 
effectively just such problems that arise out of war conditions. 
Except in the extraordinary cases mentioned, where the courts 
have held that necessity and the failure of Congress to act are 
a sufficient justification, the exercise of such power is dependent 
upon definite statutory authority. The grant of such authority 
during the recent war is likely to have set a precedent that will 
be followed without much question in case of similar emergencies 
in the future. 

58 iV. r. Times, Nov. 22, 1919; cf. supra, 206-207. 

59 Supra, 207-208 ; see statement of the former Fuel Administrator, Dr. 
Garfield, before the Senate Committee on Interstate Commerce, Dee, 13, 
1919. N. ¥. Times Current Hist. Mag., XI, Pt. 2, 30 (Jan., 1920). The 
commission was composed of Henry M. Eobinson, John P. White, and Rem- 
brandt Peale. 

60 N. Y. Times, Feb. 29, 1920. This commission was composed of A. W. 
Howe, Eembrandt Peale, F. M, Whittacker, and J. F. Fisher. 

61 See announcement in United States Bulletin, Mar. 29, 1920. 



264 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [264 

The exercise of war powers during a period of reconstruction 
cannot be a source of danger, since it is always subject to a 
check by Congress. In no case can it be said that the President 
has any absolute powers with regard to reconstruction problems, 
as he has with regard to the actual conduct of the war. It has 
been noted that any powers in this respect may be exercised by 
the President only because of the failure of Congress to act, or 
by virtue of express statutory authority. Hence, Congress may 
at any time check any undue exercise of Executive power, either 
by taking definite action itself in the one case or by repealing its 
grant of power in the other. 



CHAPTER XVI 



CONCLUSION 



In summing up the results of this study, it may be noted again 
that the war powers of the President are derived principally 
from the Constitution. There is only one clause in that instru- 
ment, however, which expressly confers upon the President any 
power relating directly to war, namely, the clause which makes 
him Commander-in-Chief of the army and navy of the United 
States and of the militia of the several states when called into 
the actual service of the United States. Even the powers of the 
President as Commander-in-Chief are undefined in the Consti- 
tution, and hence it has been necessary to determine them more 
exactly by reference to international law and practise, to the 
statutes of the United States, to custom and usage, and to au- 
thoritative opinion. 

However, the Constitution vests in the President other pow- 
ers and duties which do not necessarily or primarily imply the 
existence of war for their exercise, but which may have a close 
relation to the initiation and conduct of war, and must therefore 
be considered in this discussion. The most important of these 
are the powers of the President with regard to foreign relations 
and the powers that may be derived from his position as the Chief 
Executive of the nation. The scope of these powers is likewise 
undefined in the Constitution, and must again be determined 
through necessary implication and authoritative interpretation. 
Other powers of the President that have been noted as bearing 
upon the conduct of war are his powers of appointment and re- 
moval, his power of pardon, and his power and influence with 
regard to legislation. 

Again, other clauses of the Constitution, while not expressly 
conferring any power upon the President, have been taken into 
account because they may, by necessary implication, add to his 

265 



266 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [266 

war powers. These are particularly the clauses which relate to 
the suspension of the writ of habeas corpus, and guarantee to 
the states a republican form of government and protection from 
invasion, insurrection and domestic violence.^ Those clauses of 
the Constitution which confer powers relating to war expressly 
upon Congress have also been taken into consideration. 

From our study of these express powers, as interpreted and 
applied in the various emergencies that have arisen, it may be 
said, in the first place, that the President, through his control of 
foreign relations, his power as Commander-in-Chief, and his in- 
fluence and authority as Chief Executive, may virtually compel 
or prevent a war, at his discretion. He may very largely in- 
fluence a declaration of war by Congress, and he may even begin 
a "defensive" war without such a declaration. 

In the second place, it is the President, not Congress, who 
wages war, his military powers as Commander-in-Chief making 
him supreme in that respect and solely responsible for the actual 
conduct of war. His constitutional powers in this regard are 
customarily supplemented with considerable statutory authority, 
so that he has large powers with regard to raising and organiz- 
ing the armed forces ; he directs and controls all military opera- 
tions ; he exercises complete powers of military jurisdiction ; and 
he establishes and carries on military government — in fact, 
when a war has been declared or begun, the President may do 
practically anything, in a military sense, that he deems neces- 
sary to carry on that war to a successful conclusion, subject only 
to the rules of civilized warfare. 

Thirdly, the civil powers of the President are greatly increas- 
ed in time of war over those powers in time of peace. Principally 
by virtue of statutory authority, but in part also by virtue of 
his express constitutional power of appointment, and his im- 
plied powers of removal and direction, together with his author- 
ity as Commander-in-Chief, the President, during such a period 
of emergency, is vested with almost complete control of the ad- 
ministrative machinery of the government; he exercises exten- 
sive powers of police control and supervision over individual ' 
action and opinion; and he may even, as in the recent "World 
"War, practically control the economic resources of the country. 

iC/. Supra, 20, notes 34-36. 



267] CONCLUSION 267 

In the fourth place, the President, as Commander-in-Chief, 
determines when and upon what conditions hostilities are to 
cease; and, since a treaty of peace is the only constitutional 
method provided for terminating a war on the part of the Uni- 
ted States, he may also, by virtue of his treaty-making powers, 
very largely determine the definitive conditions of peace and the 
time for the final termination of the state of war. 

Finally, it has been pointed out that the President may, in the 
absence of congressional action, provide for and carry on the 
government of territory that may have been acquired as a re- 
sult of war, and in other ways exercise certain of his war powers 
during the period of reconstruction following war, in order to 
meet extraordinary situations that may arise during such a 
period, and to bring about a gradual readjustment to the normal 
conditions of peace. 

At least one definite conclusion can be drawn from this study, 
namely, that the so-called "war powers" of the Executive con- 
stitute no isolated group of powers derived from a single source, 
but that they are intimately connected with and indeed derived 
from practically every phase of the President's authority. In 
general, the war pow6rs of the President cannot be precisely 
defined, but must remain somewhat vague and uncertain. "The 
Constitution," says President Wilson, "is not a mere lawyers' 
document: it is a vehicle of life, and its spirit is always the 
spirit of the age. ' ' ^ That statement is particularly true of that 
portion of the Constitution dealing with the war powers. The 
exigencies and circumstances of war can never be foreseen or 
provided against in advance, to any appreciable extent. Hence, 
the interpretation of what may actually be included within the 
war powers depends very largely on the gravity of the particu- 
lar occasion for their exercise and the peculiar necessities that 
arise in connection. 

Thus it was, for example, that the power to arm merchant 
ships in defense was first asserted by President Adams as the 
prerogative of the Executive, under the stress of the troubles 
with France in 1798. Likewise, the power of the Executive with 
regard to military government in occupied territory was firmly 
established as a part of American constitutional law by Presi- 

' 2 Constitutional Government in the United States, 69. 



268 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [268 

dent Polk, because of the necessities of the war with Mexico. 
Under President Lincoln and the stress of civil war were devel- 
oped especially the powers of censorship and arbitrary arrest, 
and of military government over territory within the United 
States; while under President Wilson, probably the control ex- 
ercised by the Executive over the administrative machinery of 
the government and the economic resources of the country are 
the outstanding features of the war powers, as exercised during 
the recent World War. 

<x Clearly, the tendency has been towards a great increase in the 
war powers of the Executive as compared with those of Con- 
gress, a tendency quite inevitable when one considers the grow- 
ing complexity of war, with its consequent greater need for 
singleness of direction, unity of command, and the coordination 
of every resource of the nation. On the other hand, there is also 
a tendency to pay more attention to constitutional forms in 
bringing about this necessary concentration of power, rather 
than to rely upon an arbitrary exercise of power when the oc- 
casion may demand. Thus, while President Wilson undoubtedly 
exercised a vastly greater power during the recent World War 
than did President Lincoln during the Civil War, he was care- 
ful to consult with Congress almost continuously during the war, 
and to secure express authority from that body in almost every 
case where there might be any doubt as to his own power to act 
without such authority; while President Lincoln, in cases of 
doubtful authority and even of undoubted lack of authority, 
such as increasing the regular armed forces, suspending the writ 
of habeas corpus, and issuing the emancipation proclamation, 
usually acted first and secured the sanction of law afterwards, 
if at all. 

Altho, as has been noted, many of the President's war powers 
are derived from express statutory grants rather than directly 
from the Constitution, and are therefore subject to modification 
at the discretion of Congress, it may safely be assumed that pow- 
ers thus granted will, upon occasion, be granted again with more 
readiness, the necessity for such exercise of power having been 
too clearly demonstrated in the past. It is probable, for example, 
that Congress would not hesitate, in ease of a future war of sim- 
ilar importance, to vest the President immediately with the 
powers exercised by President Wilson under the Food and Fuel 



269] CONCLUSION 269 

Control Act, the Railway Control Act, or the Trading with the 
Enemy Act. A precedent of centralization of power and concen- 
tration of effort in time of war is not apt to be ignored, but, on 
the other hand, is more liable to be accepted as a principle to be 
followed in the future, if occasion arises. It may be noted here 
that, in the parliamentary governments of Europe, such as Great 
Britain, where the direction of war is vested in a Cabinet of sev- 
eral members rather than in a single Executive, the tendency, as 
shown especially during the recent World War, has been distinct- 
ly towards a concentration of the war powers in the hands of a 
smaller group, approaching singleness of control. In the United 
States, the experiences of a multiple direction of war through the 
activities of the Congress during the Revolution and of the Joint 
Committee during the Civil War, have not been forgotten, but 
were sufficient to prevent the institution, during the recent war, 
of any similar cheeks on single Executive authority. <^ 

While the President, in critical times, thus becomes practically 
a dictator, that does not necessarily mean a disregard of the prin- 
ciples of constitutional government nor require further limita- 
tions of his war powers. One of the foremost students of con- 
temporary American politics says that the ability to act prompt- 
ly and energetically in the presence of emergency being of para- 
mount importance, ''no government can survive that excludes 
dictatorship when the life of the nation is at stake," and he 
points out that the real difference between a despotism and con- 
stitutional government lies in the location of responsibility rather 
than in the limitation of power. ^ 

Certainly the tendency in the United States has been to- 
wards the concentration of the war powers in the hands of the 
Executive. More and more, however, has that been done by ex- 
press legal sanction; and more and more is the responsibility 
for anything in the way of executive action being definitely 
located in the President, so that, at the most, the President may 
be said to be in time of war, a "constitutional dictator." Even 
so, the authority of the Executive under his war powers is so 
extensive that one can only repeat the words of James Bryce 
when he wrote about the President that "when foreign affairs 

3 H, J. Ford, "The Growth of Dictatorship," in Atlantic Monthly, 
CXXI, 632-640 (May, 1918), esp. 634. 



270 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [270 

become critical, or when disorders within the Union require his 
intervention, . . everything may depend on his judgment, 
his courage, and his hearty loyalty to the principles of the Con- 
stitution. ' ' * 



4 American Commonwealth, 1, 67. 



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TABLE OF CASES CITED 

Page 

Abrams v. United States, 250 U. S., 616 (1919) 183 

Adula, The, 176 U. S., 361 (1900) 125 

Angarica v. Bayard, 127 U. S., 251 (1888) 37 

Arver v. United States, 245 U. S., 366 (1918) 105 

Bas V. Tingy, 4 Ball., 37 (1800) 84 

<- Bishop V. United States, 197 U, S., 334 (1905) 142 

Blake v. United States, 103 U. S., 227 (1880) 128, 129 

BoUman, Ex parte, 4 Cranch, 75 (1807) 189 

Brown v. United States, 8 Cranch, 110 (1814) 212 

Burke v. Miltenberger, 19 Wall., 519 (1873) 164 

Coleman v. Tennessee, 97 U. S., 509 (1878) 155, 160 

Commercial Cable Company v. Burleson, 255 Fed. Eep., 99 (1919) 219 

Cross V. Harrison, 16 How., 164 (1853) 157, 160, 257 

Dakota Central Telephone Company v. South Dakota, 250 U. S., 163 

(1919) , .219 

Debs V. United States, 249 U. S., 211 (1919) 193 

Dooley v. United States, 182 U. S., 222 (1901) 153, 160, 162 

Dow V. Johnson, 100 U. S., 158 (1879) 153, 155, 163 

Fleming v. Page, 9 How., 603 (1849) 126, 163, 224 

Floyd Acceptances, The, 7 Wall., 666 (1868) 14 

Foster v. Neilson, 2 Pet, 253 (1829) 27, 31 

Frohwerk v. United States, 249 U. S., 204 (1919) 193 

Garland, Ex parted 4 Wall., 333 (1866) 149 

Gelston v. Hoyt, 3 Wheat., 246 (1818) 31 

German Alliance Insurance Company v. Lewis, 233 U. S., 389 (1914).. . .203 

Grapeshot, The, 9 Wall., 129 (1869) 157, 164 

Gray v. United States, 21 Ct. of CI., 340 (1886) 84 

Hamilton v. Dillin, 21 Wall., 73 (1874) 209 

Hamilton v. Kentucky Distilleries & Warehouse Company, 251 U. S., 146 

(1919) 236 

Haver v. Yaker, 9 Wall., 32 (1869) 246 

Herrera v. United States, 222 U. S., 558 (1912) 163 

Hornsby v. United States, 10 Wall., 224 (1869) 153 

Jecker v. Montgomery, 13 How., 498 (1851) 164 

Johnson v. Sayre, 158 U. S., 109 (1895) 131 

Jones V. Seward, 40 Barb. (N. Y.), 563 (1863) 19 

Jones V. United States, 137 U. S., 202 (1890) 25, 31 

Kansas v. Colorado, 206 U. S., 46 (1907) 13 

Kennett v. Chambers, 14 How., 38 (1852) 31 

Lamar v. Browne, 92 U. S., 187 (1875) 248 

283 



284 WAR POWERS OF THE EXECUTIVE IN UNITED STATES [284 

Page 

Leitensdorfer v. Webb, 20 How., 176 (1857) 157, 164, 257 

Luther v. Borden, 7 How., 1 (1848) 132 

McCorinick v. Humphrey, 27 Ind., 144 (1866) 17 

Martin v. Mott, 12 Wheat., 19 (1827). 132, 140 

Mechanics and Traders Bank v. Union Bank, 22 Wall., 276 (1874). 

17, 152, 164 

Merryman, Ex parte, Fed. Cases No. 9487 (1861) 192 

Miller v. United States, 11 Wall., 268 (1870) 17, 212 

Milligan, Ex parte, 4 Wall., 2 (1868) 19, 117, 144, 146, 153, 182 

Mimmaek v. United States, 97 U. S., 426 (1888) 129 

Mississippi v. Johnson, 4 Wall., 475 (1869) 117 

Neagle, In re, 135 U. S., 1 (1890) 14, 43, 50 

Neely v. Henkel, 180 U. S., 109 (1901) 154, 260 

New Orleans v. Steamship Company, 20 Wall., 387 (1874)... 153, 163 

Northern Pacific Eailway Company v. North Dakota, 250 U. S., 135 

(1919) 216 

Prize Cases, 2 Black, 635 (1862) 60, 75, 76, 125, 209 

Protector, The, 12 Wall., 700 (1871) 247, 248 

Eaymond v. Thomas, 91 U. S., 712 (1875) 160 

Eose V. Himely, 4 Cranch, 241 (1801) 31 

Eunkle v. United States, 122 U. S., 543 (1887) 142, 148 

Salamandra Insurance Company v. New York Life Insurance Company, 

254 Fed. Eep., 852 (1918) 212 

Sehenck v. United States, 249 U. S., 47 (1919) 193 

Shurtleff v. United States, 189 U, S., 311 (1903) 128 

Siebold, Ex parte, 100 U. S., 371 (1879) 43 

Stata, The, 56 Fed. Eep., 505 (1893) 32 

Stewart v. Kahn, 11 Wall., 493 (1870) 17, 251 

Swaim v. United States, 165 U. S., 553 (1897) 139 

Talbot V. Johnson, 3 Dall., 133 (1795) 60 

Texas v. White, 7 Wall., 700 (1868) 156, 251 

Totten V. United States, 92 U. S., 105 (1875) 125 

Tucker v. Alexandroff, 183 U. S., 424 (1902) 40 

United States v. Eliason, 16 Pet., 291 (1842) 21, 112 

United States v. Fletcher, 148 U. S., 84 (1893) 142 

United States v. Guthrie, 17 How., 283 (1854) 128 

United States v. Hutchings, 2 Wheeler's Crim. Cases, 543 31 

United States v, Klein, 13 Wall., 128 (1871) 149, 150 

United States v. Padelf ord, 9 Wall., 531 (1869) 150 

United States v. Page, 137 U. S., 673 (1891) 142 

United States v. Trumbull, 48 Fed. Eep., 99 (1891) 32 

United States v. Warfield, 170 Fed. Eep., 43 (1909) 21 

Vallandigham, Ex parte, 1 Wall., 243 (1863) 144, 146, 147 

Watts V. United States, 1 Wash. Terr., 288 (1870) 39 

Wilcox V. Jackson, 13 Pet., 498 (1839) 21 

Williams v. Suffolk Insurance Company, 13 Pet., 415 (1839) 27, 31 



INDEX 



Adams, John, President, arming of 
merchant vessels, 67, 81, 267; 
war influence, 80-84; on power to 
make war, 86; exercise of pardon, 
149; purpose of Alien Act, 187 

Adams, John Quincy, on nature of 
war powers, 15, 79; peace com- 
missioner, 238; Secretary of State, 
defense of Jackson, 66 

Air Service, reorganization of, 177- 
178 

Alabama claims, 31, 89 

Alaska, executive agreement con- 
cerning, 41; government of, 252 

Aldrich, Nelson W., Senator, on 
senators as treaty negotiators, 
242 

Alien Act, of 1789, 186-188 

Alien Property Custodian, 172, 212, 
213 

Aliens, enemy, control of in war, 
184-186 

Allison, W, B., Senator, on senators 
as treaty negotiators, 242 

Amnesty, proclamations of, 149-150 

Ansell, S. T., Acting Judge Advo- 
cate General, opinions of, 129, 
143 

Arbitrary arrest, 182, 191, 268 

Arbitration, 89, 90, 91, 92 

Armed merchant ships, 67-70, 81, 
198, 267 

Armed neutrality, 70 

Armenia, use of troops in, 56 

Armistice, nature of, 232-236, 246; 
exercise of powers after signing 
of, 206, 207, 216, 218 

Army, power to raise, 101; founda- 
tion of, 102; legionary form of 
organization, 111-112; see also 
Conscription, National army, Regu- 



lar army. Troops, Voluntary en- 
listment 

Articles of War, 138, 141 

Ashmun resolution, concerning war 
with Mexico, 74 

Attorney General, opinions of, on 
arming of merchant vessels, 69 ; on 
use of militia, 133, 134; on courts- 
martial, 139, 143; on military 
commissions, 144; on military 
government, 162; on suspension of 
habeas corpus, 190; on termina- 
tion of war, 236; powers of Food 
Administrator transferred to, 207, 
263 

Austria-Hungary, war with, 93, 95, 
185, 186, 226, 234, 248, 262 

Bacon, A. O., Senator, on power to 
declare war, 95-96; on nature of 
executive office, 115, 116; on 
senators as treaty negotiators, 
242 

Baker, Newton D., Secretary of War, 
use of troops in Silesia, 56; con- 
scription, 108; Siberian exped- 
ition, 123, 125; member of Com- 
mittee on Public Information, 
197 

Baldwin, S. E., on Venezuela affair, 
30; on declaration of war, 58, 80; 
on termination of war, 224, 226, 
237 

Ballantine, H. W., on civil rights in 
war, 182 

Banks, N. P., General, military 
government by, 154, 161 

Barbary Powers, hostilities against, 
64 

Barrier forts, in China, attack up- 
on, 51 



285 



286 



WAR POWERS OF THE EXECUTIVE IN UNITED STATES 



[286 



Baruch, Bernard M., chairman of 
War Industries Board, 178, 211 

Bates, Edward, Attorney General, 
opinions of, on courts-martial, 
143; on suspension of habeas cor- 
pus, 190 

Bayard, James, peace commissioner, 
238, 240, 241 

Bayard, Thomas A., Secretary of 
State, executive agreement con- 
cerning fisheries question, 41 

Bent, Charles, governor of New 
Mexico, 158, 161 

Benton, Thomas H., Senator, on 
Panama Congress, 27; on inchoate 
interest in Texas, 47; on war with 
Mexico, 72; on government of 
California, 254 

Bill of Rights, 182 

Birkhimer, W. E., on beginning of 
war, 60 

Blair, Montgomery, Postmaster Gen- 
eral, on censorship in war, 195, 
196 

Bliss, Tasker H., General, 126; 
peace commissioner, 239 

Blockade, 74, 75, 125, 209, 234 

Borah, William E,, Senator, on use 
of troops in Siberia, 124 

Boxer rebellion, 39, 52, 239 

Browning, O. H., Senator, on nature 
of war powers, 17 

Bryce, James, on power of Presi- 
dent, 269 

Buchanan, James, Secretary of 
State, grievances against Mexico, 
87; government of California, 
255; President, protection of 
American interests abroad, 51 

Bulgaria, relations with, 93 

Bureau of Efficiency, 176 

Bureau of Standards, 180 

Cabinet, War, 172, 177 

Cable censorship, 200, 201 

Cable control, 219 

Calhoun, John C, Secretary of War, 



responsible for Jackson's occupa- 
tion of Florida, 109; Senator, op- 
posed to war with Mexico, 73 

California, military government of, 
154, 155, 158, 159, 161, 254, 255, 
256, 257, 258 

Canada, executive agreement con- 
cerning, 41; Fenian invasion of, 
44, 89 

Caribbean, zone of, police control in, 
53, 55, 56 

Cass, Lewis, Senator, favored war 
with Mexico, 73-74; Secretary of 
State, on protection of American 
interests abroad, 51 

Censorship, 171, 180, 194-202, 268 

Censorship Board, 171, 201 

Chamberlain, George E., Senator, 
proposal for War Cabinet, 172 

Chase, Salmon P., Secretary of the 
Treasury, organization of armed 
forces, 112-113 ; Chief -Justice, 
definition of military government, 
153 

Chesapeake affair, 84, 85 

China, Boxer rebellion, 39, 51-52; 
attack upon Barrier forts, 51 

Civil Service, transfer of employees 
under, 177 

Civil War, blockade, 74-75, 209; 
raising and organization of armed 
forces, 104, 106, 110-111, 112-113; 
draft, 106, 167-168; military com- 
missions, 144, 147; pardon, 150; 
congressional check on conduct, 
170, 269; suspension of habeas 
corpus, 189, 190-192; censorship, 
195-197, 268; regulation of inter- 
course, 208; confiscation of prop- 
erty, 212; control of railroads, 
214; control of telegraph, 218, 
219; termination, 248; reconstruc- 
tion, 251 

Clay, Henry, recognition of South 
American provinces, 33 ; war in- 
fluence, 85; peace commissioner, 
238, 240, 241 



287] 



INDEX 



287 



Clemency Board, during World War, 
150 

Cleveland, Grover, President, Ven- 
ezuela affair, 30, 89-90; power of 
recognition, 32; intervention in 
Colombia, 53; Cuban policy, 91 

Coast and Geodetic Survey, transfer 
of, 177 

Coast Guard, transfer of, 177 

Colombia, relations with, 49, 53 

Columbus raid, 67 

Commander-in-Chief, nature of pow- 
ers as, 11, 17, 19, 115, 116-117, 
265; executive agreements, 37, 40; 
military measures short of war, 
43; defensive war, 59, 60, 62, 75; 
personal command, 115, 116, 118- 
120, 135-137; direction of military 
and naval operations, 117, 121-126, 
266; appointment and dismissal of 
officers, 126-130; control of mil- 
itia, 130-135; military jurisdic- 
tion, 139, 147; military govern- 
ment, 152, 153, 157, 164; war ad- 
ministration, 172, 174, 266; po- 
lice control, 182, 186, 194, 200, 
201, 202; control of economic re- 
sources, 209; termination of war, 
233, 267; reconstruction, 251, 253, 
257, 260 

Committee on Public Information, 
172, 197-199, 201 

Communication, control of, 231, 
218-219 

Confiscation Acts, 16, 150, 212 

Congress, war powers of, 16, 17, 18, 
19, 58, 78, 79, 88, 95-96, 101, 117, 
118, 121, 126, 127, 131, 138, 142, 
149, 170, 183, 189, 191, 193, 208, 
224, 226-230, 248, 251, 252, 254, 
257, 264, 268 

Conscription, in the Eevolution, 105; 
in Civil War, 106, 167-168; in 
World War, 107-108, 169 

Constitution, nature of executive, leg- 
islative, and judicial clauses, 11; 
Wilson-Eoosevelt doctrine of con- 



struction, 12-14; as source of war 
powers, 20, 265-266; as war in- 
strument, 182 

Convention of 1787, on power to de- 
clare war, 61, 78-79; on powers of 
command, 115, 119; on control of 
militia, 130; on power to make 
peace, 228-229 

Corwin, E. S., on control of foreign 
policy, 29, 31; on power of de- 
fense, 77; on power to declare 
peace, 226 

Council of National Defense, 172, 
178, 204, 211, 215 

Courts-martial, 138-143, 147, 163, 
190 

Creel, George, chairman of Commit- 
tee on Public Information, 198, 
199 

Crowninshield, B. W., Secretary of 
the Navy, 38 

Cuba, recognition of, 32; filibuster- 
ering expeditions against, 45; dif- 
ficulties concerning, 91-92; mili- 
tary government of, 156, 259- 
260 

Cullom, S. M., Senator, on senators 
as treaty negotiators, 241 

Cummins, A. B., Senator, on Over- 
man Act, 174; on railway control, 
215, 216 

Dalmatia, use of troops in, 56, 57 

Daniels, Josephus, Secretary of the 
Navy, member of Committee on 
Public Information, 197; on vol- 
untary censorship, 198 

Davis, Cushman K., Senator, peace 
commissioner, 240 

Davis, George B., Judge Advocate 
General, opinion of, on use of 
militia, 134 

Day, William E., Secretary of State, 
peace commissioner, 240 

Declaration of war, 46, 58-64, 71- 
76, 78-80, 82-98, 104, 226, 266 

Demobilization, 234, 235, 236 



288 



WAR POWERS OF THE EXECUTIVE IN UNITED STATES 



[288 



Denby, Charles, member of Philip- 
pine Commission, 157 
Devens, Charles, Attorney General, 

opinion on courts-martial, 139 
Dewey, George, Admiral, member of 

Philippine Commission, 157 
Dick Militia Act, 133 
Dictatorship, in war, 18, 19, 203, 

269 
Diplomatic relations, breaking of, 

35-37, 93 
Director General of Eailroads, 172, 

180, 215, 216 
District of Columbia, enemy aliens 

barred from, 186 
Draft, in Civil War, 106, 167-168; 

see also Conscription 
Dunning, W. A., on civil rights in 

war, 183 

Edge, W. E., Senator, resolution on 
use of troops abroad, 124; resolu- 
tion for termination of war, 225 

Emancipation proclamation, 268 

Embargo, 208, 210 

Emergency Fleet Corporation, 217 

Enemy aliens, control of in war, 184- 
186 

Enlistment, voluntary, 101, 104, 105 

Esch-Cummins Eailroad bill, 216 

Espionage Act, 150, 170, 193-194, 
201, 209 

Executive agreements, nature of, 
37; with, Great Britain, 37-39, 
41; with China, 39-40; with Mex- 
ico, 40; with Spain, 41; with 
Panama, 41; with Japan, 41; 
with Santo Domingo, 42 

Executive orders, as forms of presi- 
dential action, 20 

Executive power, nature of consti- 
tutional provision, 11; Eoosevelt 
theory, 12-14; extent of, 14-15 

Exports Administrative Board, 171 

Exports Council, 171 

Eairlie, J. A., on nature of war 



powers, 20; on forms of presi- 
dential action, 20-21; on delega- 
tion of powers, 21; on war influ- 
ence of President, 31 

Fall, A, B., Senator, resolution for 
withdrawal of recognition, 35; 
resolution for termination of war, 
225 

Federal Trade Commission, trans- 
fer of powers, 179 

Fenian invasion, 44, 89 

Filibuster, on arming of merchant 
vessels, 69 

Filibustering expeditions, 45 

Fillmore, Millard, President, on con- 
trol of militia, 131; powers of 
reconstruction, 256 

Fish, Hamilton, Secretary of State, 
influence for peace, 89 

Fisheries question, executive agree- 
ment concerning, 41 

Fletcher, D. U., Senator, on Over- 
man Act, 174 

Florida, inchoate interest in, 45-46; 
occupation of, 65, 66; government 
of, 252 

Florida claims, 89 

Food control, 170, 171, 204-207, 210, 
262 

Food and Fuel Control Act, 170, 205, 
207, 208, 230, 262, 268 

Foraker, Joseph B., Senator, on 
senators as treaty negotiators, 242 

Ford, H, J., on dictatorship in war, 
269 

Foreign language press, control of, 
201 

Foreign policy, formulation of, 26-31 

Foreign troops, entry of, executive 
agreements concerning, 40-41 

Fourteen poiuts, 234, 244 

France, difdculties with, 80, 83, 84, 
103 

France, J. I., Senator, resolution for 
pardon of political prisoners, 151 

Freedom of speech and press, 182, 
183, 192-202 



289] 



INDEX 



289 



Frelinghuysen, F. T., Secretary of 

State, executive agreements, 40, 

41 
Fremont, John C, Colonel, military 

governor of California, 158, 255 
Frye, William P., Senator, peace 

commissioner, 240 
Fuel control, 170, 171, 179, 207-208, 

263 

Gallatin, Albert, on war influence of 
President, 82 ; peace commissioner, 
238 

Garfield, H. A., Fuel Administrator, 
207, 208, 263 

Garner, J. W., on executive power 
in war, 15 

Gerard, James W., Ambassador, re- 
call of, 37 

Germany, war with, declaration of, 
92, 95, 226; raising of forces dur- 
ing, 105, 107-108 ; control of aliens 
during, 185, 186; armistice con- 
ditions, 234; reconstruction after, 
262; termination of, 225, 226, 
230-231, 235-236, 248 

Goodnow, F. J., on nature of war 
powers, 13, 19, 167 

Grain Corporation, United States, 
171, 206 

Grant, U. S., President, inchoate in- 
terest in Santo Domingo, 48; in- 
fluence for peace, 88-89 

Graves, William S., Major General, 
commander of Siberian expedition, 
122, 123 

Gray, George, Senator, peace com- 
missioner, 240 

Great Britain, executive agreements 
with, 37-39, 41; relations with, 
62-63, 84-86, 88-90; see also War 
of 1812 

Great Lakes, limitation of naval 
armaments on, 37 

Gregory, Thomas W., Attorney Gen- 
eral, opinion on arming of mer- 
chant vessels, 69 



Greytown (Nicaragua), bombard- 
ment of, 50 

Griggs, John W., Attorney General, 
opinions of, on military govern- 
ment, 162; on termination of war, 
236 

Habeas corpus, suspension of, 188- 
192, 266, 268 

Hague Convention, 61, 94, 95, 96 

Hale, Eugene, Senator, on senators 
as treaty negotiators, 241, 242 

Hamilton, Alexander, on power to 
receive and send diplomatic rep- 
resentatives, 35; on neutrality, 
44; on power of defense, 63-64; 
on power of declaring war, 78, 
94; on powers of command, 116, 
119; on power of pardon, 148; on 
executive war power, 167 

Hand, Learned, Judge, on power to 
terminate war, 236 

Harding, Warren G., Senator, on 
dictatorship in war, 18 

Harrison, Benjamin, President, on 
appointment of oflfieers, 127 

Hartford Convention, 132 

Hawaii, government of, 253 

Hayti, intervention in, 54 

Helvidius letter, on neutrality, 44 

Henry correspondence, 85, 86 

Henry, Patrick, on dictatorship in 
war, 18 

Hines, Walker D., Director General 
of Eailroads, 216, 262 

Hitchcock, C. N,, on control of in- 
dustry in war, 211, 212 

Hitchcock, Gilbert M., Senator, on 
use of troops in Dalmatia, 57 

Hoar, George F., Senator, on ap- 
pointment of senators as treaty 
negotiators, 241, 242 

Holmes, O. W., Justice, dissenting 
opinion on civil rights in war, 183 

Honduras, intervention in, 55 

Hoover, Herbert, Food Administra- 
tor, 204, 205 



290 



WAR POWERS OF THE EXECUTIVE IN UNITED STATES 



[290 



Horseshoe Eeef, executive agreement 
concerning, 38 

House, Edward M., peace commis- 
sioner, 239 

Housing Corporation, 213 

Hughes, Charles E., on direction of 
military movements, 121; on con- 
trol of business in war, 204, 219; 
on power to make peace, 229; on 
powers of reconstruction, 250 

Ide, Henry C, member of Philip- 
pine Commission, 260 

Inchoate interest, in Florida, 45-46; 
in Texas, 47-48; in Santo Domin- 
go, 48-49; in Panama Canal, 49 

Industry, control of, 204, 210-212 

International law, as limitation on 
war powers, 15, 17; as source of 
war powers, 20; control of enemy 
aliens, 184, 185; treatment of 
enemy property, 212; right of 
requisition, 217 

Internment, during World War, 185, 
186 

Interstate Commerce Commission, 
215 

Intervention, 53-57 

Jackson, Andrew, General, occupa- 
tion of Florida, 65, 66, 67; raising 
of troops in Seminole War, 108- 
109; President, recognition of 
Texas, 33 

Jefferson, Thomas, on arming of 
merchant vessels, 67; on war in- 
fluence of Adams, 80, 81; on sus- 
pension of habeas corpus, 189; 
Secretary of State, formulation of 
foreign policy, 26; President, 
power of defense, 63, 64-65; in- 
fluence for peace, 84-85 

Johnson, Andrew, military governor, 
153, 158; President, limitation on 
removal power, 128; convenes mil- 
itary commission, 145; exercise of 



pardon, 150; powers of reconstruc- 
tion, 251 

Johnson, Hiram, Senator, on Siber- 
ian policy, 124 

Judge Advocate General, opinions 
of, 129, 134, 143 

Judicial power, constitutional limi- 
tation on, 11 

Kearney, S. W., General, military 
government by, 154, 155, 157, 158, 
161, 163 

Knox, P. C, Senator, on nature of 
war powers, 16; on Overman Act, 
175; peace resolution, 225, 226, 
230; resolution for separation of 
covenant and treaty, 244 

Koszta incident, 50 

Lansing, Eobert, Secretary of State, 
on arming of merchant vessels, 
69 ; member of Committee on Pub- 
lic Information, 197; peace com- 
missioner, 239 

Lansing-Ishii agreement, 41 

League of Nations, 224, 225, 244, 
245 

Legion, as form of army organiza- 
tion, 111-112 

Legislative power, constitutional 
limitation on, 11 

Lenroot, I. L., Senator, on termina- 
tion of war, 224 

Lighthouse Service, transfer of, 177 

Lincoln, Abraham, President, on na- 
ture of war powers, 16; exercise 
of arbitrary power, 18, 268; pow- 
er of r 5Cognition,i,f?^; blockade, 
74. 125, 209; draf;... lU6; question- 
able authority, 110, 175; powers 
of command, 120; trial of assas- 
sins of, 144, 145; exercise of par- 
don, 150; military government, 
158, 161, 163; suspension of 
habeas corpus, 190, 192; regula- 
tion of intercourse, 209; control 



291] 



INDEX 



291 



^ggiigmtS0^ 



of railroads, 214; powers of re- 
construction, 251 

Lodge, H. C, Senator, on Fall reso- 
lution, 36; resolution for termina- 
tion of war, 225, 227; control of 
negotiations, 245, 246 

Louisiana, government of, 252 

McAdoo, W. G., Director General of 
Eailroads, 172, 215, 216 

MeCallum, D. C, military director 
of railroads, 214 

McComas, J. B., Senator, on sena- 
tors as treaty negotiators, 242 

McCormick, Medill, Senator, resolu- 
tion on use of troops abroad, 124 

McKinley, William, President, or- 
ders military force to China, 51; 
war influence, 91-92; direction of 
military operations, 120; block- 
ade, 125, 209; military govern- 
ment, 154, 156, 157, 159, 258-262; 
preliminary protocol, 234; ap- 
pointment of peace commissioners, 
239, 240; control of peace nego- 
tiations, 243 

Madison, James, on neutrality, 44; 
on arming of merchant vessels, 68 ; 
on war influence of Adams, 81, 
88; on power of declaring war, 
94; President, war influence, 85; 
proclamation of war, 97; use of 
militia in war, 132; exercise of 
pardon, 150; proposal for armis- 
tice, 233; appointment of peace 
commissioners, 238 

Maine controversy, 91 

March, Pey<— C., Genei^l, 114, 126 

Marcy, W. , Secretary of -War, 
Koszta incident, 50; military gov- 
ernment of New Mexico, 159, 255 

Marine Hospital Service, 177 

Marines, use of in Caribbean Zone, 
55 

Marshall, John, on control of for- 
eign relations, 25 



Martial law, 138, 143, 145, 146, 152 

Mason, William E., Representative, 
peace resolution, 225 

Mayes, James J., Acting Judge Ad- 
vocate General, opinions of, 129 

Merchantmen, armed, 67-70, 81, 198, 
267 

Mexico, Wilson's relations with, 30, 
35-36, 52, 67; war with, as war 
of defense, 70-74; beginning of, 
86-88; declaration of, 88, 95, 226; 
raising of forces during, 103; ap- 
pointment of officers in, 126; use 
of militia in, 132, 133; blockade, 
209; termination of, 247 

Military commissions, 138, 143-147, 
163, 190 

Military governor, 155, 158, 159 

Militia, 61, 107, 130-137 

Mines, Bureau of, 179, 180 

Monroe, James, Secretary of State, 
armistice proposal, 233; Secretary 
of War, recommends conscription, 
106; on control of militia, 132, 
136, 137; President, power of rec- 
ognition, 33; inchoate interest in 
Florida, 46; power of defense, 
65; appointment of officers, 127; 
on appointment of members of 
Congress to foreign missions, 240 

Monroe doctrine, 30, 31, 54, 90 

Moore, John Bassett, on executive 
agreements, 37 

Morgan, E, M., on courts-martial, 
142 

Morgan, John T., Senator, on sena- 
tors as treaty negotiators, 241 

Moses, Bernard, member of Philip- 
pine Commission, 260 

Murray, William Vans, on arming 
of merchant vessels, 68 

National Army, 106, 113 

National Defense Act, 105, 107, 113, 

132, 210 
National Guard, 107, 113 



292 



WAR POWERS OF THE EXECUTIVE IN UNITED STATES 



[292 



Navy, power to provide, 101; see 
also Secretary of the Navy 

Negotiations, control of, 25, 31, 242- 
246 

Nelson, Knute, Senator, on Over- 
man Act, 175 

Neutrality, enforcement of, 44-45, 
70, 88 

New Mexico, military government 
of, 154, 157, 158, 159, 161, 163, 
254, 255, 257 

Newspapers, control of in war, 196, 
198-199, 201-202 

Nicaragua, bombardment of Grey- 
town, 50; intervention in, 55 

Official Bulletin, 198 
Oregon question, 86 
Otis, E. S., Major General, member 

of Philippine Commission, lo7 
Overman Act, 173-181, 231, 262 

Pacificus letter, on neutrality, 44 
Palmer, A. Mitchell, Alien Property 

Custodian, 213; Attorney General, 

opinion on power to terminate 

war, 236 
Panama, relations with, 41, 49, 51, 53 
Panama Canal Zone, 180, 186, 253 
Panama Congress, 27-30 
Pardon, power of, 141, 148-151 
Peace, power of Congress to declare, 

224-231 
Peace commissioners, appointment 

of, 237-239; senators as, 240-242 
Peace negotiations, control of, 237, 

242-246 
Peace resolutions, 225, 226, 227, 230 
Peace treaty, 223-225, 228-231 
Pershing, John J., General, 126, 127 
Phelps, John S., military governor 

of Arkansas, 158 
Philippine Commission, 156, 157, 

260, 261 
Philippines, government of, 154, 156, 

159, 160, 260-262; acquisition of, 

234, 243 



Pierce, Pranklin, President, defends 
bombardment of Greytown, 50 

Piatt, O. H., Senator, on senators as 
treaty negotiators, 242 

Piatt Amendment, 259 

Poindexter, Miles, Senator, on ter- 
mination of war, 224, 226 

Police supervision, 53-57 

Polk, James K., President, enforce- 
ment of neutrality, 45; inchoate 
interest in Texas, 47-48; war in- 
fluence, 70-72, 86-88; proclama- 
tion of war, 97; direction of mili- 
tary operations, 120, 126; exer- 
cise of pardon, 149; military gov- 
ernment, 154, 157, 160, 268; 
blockade, 209; appointment of 
peace commissioners, 238-239; con- 
sultation with Senate, '244; pow- 
ers of reconstruction, 254-256 

Pomeroy, J. N., on use of militia, 
134 

Porter resolution, for termination of 
war, 226 

Porto Eico, government of, 156, 
159, 258; acquisition of, 234 

Posse eomitatus, use of army as, 43 

Postmaster General, control of wire 
services, 180, 219; censorship by, 
195, 196, 201-202 

Preliminary protocol, 232, 234, 236 

President, source of war powers, 20; 
see also names of Presidents, and 
passim 

Press, control of in war, 182, 192-202 

Price control, 179, 203, 204, 205, 
206, 207, 210 

Proclamations, as forms of presi- 
denial action, 20 ; of state of war, 
97-98; of amnesty, 149-150; fix- 
ing registration days, 168; an- 
nouncing enemy alien regulations, 
185-186; suspending habeas cor- 
pus, 190; establishing food and 
fuel regulations, 205-206, 207; an- 
nouncing termination of war, 247- 
248 



293] 



INDEX 



293 



Prohibition, 206, 236 

Property, control of, 182, 203, 212- 

214 
Protocol, preliminary, 232, 234, 236 
Provost Marshal General, 168, 170, 

180 
Public Health Ser\dce, 177, 180 
Punitive expeditions, 65-67 

Eadio control, 218-219 

Eailroads, control of, 172, 208, 214- 
217, 262 

Eailroads War Board, 214 

Eailway Control Act, 171, 215, 231, 
262, 269 

Eatifieation, povrer of, 246-248 

Eayner, Isador, Senator, theory of 
executive power, 13 

Eecognition, power of, 31-34, 35 

Eeed, James A., Senator, opposes 
Overman Act, 174 

Eegistration, under Selective Service 
Act, 168 

Eegular Army, 105, 113, 122 

Eeid, Whitelaw, peace commissioner, 
240 

Eeprieves, power of granting, 148 

Eequisition, power to, 203, 204, 206, 
210, 211, 217, 218 

Eevolutionary War, dictatorship in, 
18, 203; conscription in, 105; 
direction of, 269 

Eockhill, W. W., special commission- 
er to China, 40, 239 

Eoosevelt, Theodore, President, the- 
ory of executive power, 12-13; re- 
lations with Santo Domingo, 41- 
42, 49, 54; intervention in Pana- 
ma, 49; command in war with 
Germany, 105, 130 

Eoot, Elihu, on nature of war pow- 
ers, 16, 250; Secretary of War, 
259, 260 

Eoot-Takahira agreement, 41 

Eush, Eichard, Acting Secretary of 
State, 38 

EusseU, Jonathan, charge d' af- 



faires, 233; peace commissioner, 
238 
Eussia, recognition of Omsk govern- 
ment, 32; use of troops in, 123 

Sanford, Edward S., military super- 
visor of telegraphic messages, 196 

San Juan (Nicaragua), city of, 
bombardment of, 50 

San Juan, island of, executive agree- 
ment concerning, 39 

Santo Domingo, executive agree- 
ment with, 42; inchoate interest 
in, 48; intervention in, 54, 56 

Schouler, James, on power to make 
peace, 230, 237 

Schurman, Jacob G., member of 
Philippine Commission, 157 

Schurz, Carl, Senator, on inchoate 
interest in Santo Domingo, 48 

Scott, W. S., General, 126, 143, 190 

Secretary of Agriculture, 171, 210 

Secretary of Commerce, 171, 176, 
210 

Secretary of the Interior, 180 

Secretary of Labor, 180, 213 

Secretary of the Navy, 38, 56, 142, 
176, 180, 197, 198, 200, 201 

Secretary of State, 12, 40, 41, 48, 
51, 66, 69, 87, 89, 171, 191, 195, 
196, 197, 198, 210, 234, 239, 240, 
255 

Secretary of the Treasury, 112, 113, 
172, 180, 209, 210, 215, 238, 253 

Secretary of War, 41, 56, 62, 108, 
109, 123, 125, 132, 142, 156, 159, 
180, 191, 197, 198, 200, 201, 253, 
255, 259, 260, 261 

Sedition Act, of 1798, 187, 188, 193, 
194 

Selective Service Act, 105, 107, 113, 
126, 127, 129, 168, 169 

Seminole War, of 1818, 65-66, 108, 
132, 138 

Senate, on power of recognition, 32, 
34; power regarding executive 
agreements, 37; treaty -making 



294 



WAR POWERS OF THE EXECUTIVE IN UNITED STATES 



[294 



power, 47, 228-230, 231, 232, 244- 
246; filibuster in, 69; power re- 
garding appointment and remov- 
al of officers, 126-129; on fuel or- 
der, 207; confirmation of peace 
commissioners, 237-239; on sena- 
tors as treaty negotiators, 240- 
242 

Sequestration, 212 

Seward, W. H., Secretary of State, 
censorship by, 195 

Shepley, George F., military gover- 
nor of Louisiana, 158, 161 

Sherman, L, Y., Senator, resolution 
on use of troops abroad, 57 

Shields, John K., Senator, on War 
Cabinet, 173 

Shipping, control of, 217-218 

Shipping Board, 171, 172, 180, 210, 
217 

Siberian expedition, 123, 124, 125 

Signal Corps, reorganization of, 177- 
178 

Silesia, use of troops in, 56 

Smith, Hoke, Senator, opposes Over- 
man Act, 174 

South, blockade of, 74, 125, 209; 
military government of, 154, 155, 
157, 158, 161, 162, 163-164; recon- 
struction of, 251 

Spain, war with, beginning of, 91- 
92; declaration of, 95, 98, 104, 
226; organization of forces in, 
113; blockade, 125, 209; use of 
militia in, 134, peace negotiations, 
234, 243; termination of, 248; 
acquisition of territories, 258 

Speed, James, Attorney General, 
opinion on military commissions, 
144 

Spooner, John C, Senator, on con- 
duct of foreign relations, 25, 245, 
247; on powers of command, 117 

Sprigg resolution, negative declar- 
ation of war, 83 

Stager, Anson, military superintend- 
ent of telegraphs, 218 



Standards, Bureau of, 180 

Stanly, Edward, military governor 
of North Carolina, 158 

Stanton, Edwin M., Secretary of 
War, on military occupation of 
South, 156 

State, department of, peculiar stat- 
us of, 25; see also Secretary of 
State 

Sterling, Thomas, Senator, on pow- 
er to make peace, 230 

Stockton, Commodore, military gov- 
ernor of California, 154, 158, 161 

Stone, William J., Senator, on arm- 
ing of merchant vessels, 69 

Story, Joseph, Justice, on power of 
recognition, 34; on power to make 
peace, 229 

Sumner, Charles, Senator, on nature 
of war powers, 15, 16, 17-18; on 
inchoate interest in Santo Domin- 
go, 48; hostility towards Great 
Britain, 89 

Supreme Court, on executive power, 
13; on nature of war powers, 16- 
17, 19; on power to begin war, 
60; on wars of conquest, 223; on 
power to terminate war, 236; see 
also Table of Cases 

Taft, W. H., theory of executive 
power, 14; on formulation of for- 
eign policy, 26; on power to make 
peace, 230; Secretary of War, ex- 
ecutive agreement with Panama, 
41; member of Philippine Com- 
mission, 260; governor of Philip- 
pines, 261; President, intervention 
in Caribbean Zone, 55 

Taney, Eoger B., Chief -Justice, dis- 
sent in Prize Cases, 75; on sus- 
pension of habeas corpus, 192 

Taylor, Hannis, on use of troops 
abroad, 122 

Taylor, Zachary, General, 48, 70, 71, 
87, 126; President, powers of re- 
construction, 256 



295] 



INDEX 



295 



Telegraph and telephone, control of, 
180, 185, 196, 200, 214, 218-219 

Teller, Henry M., Senator, on sena- 
tors as treaty negotiators, 242 

Termination of war, 223-231, 232, 
235-236, 247-248 

Texas, annexation of, 31, 47; rec- 
ognition of, 33; inchoate interest 
in, 47-48 

Thayer, H. E., censor in Civil War, 
195 

Tillman, B. E., Senator, on senators 
as treaty negotiators, 241 

Trade, control of, 208-210 

Trading with the Enemy Act, 171, 
172, 200, 201, 209, 210, 212, 230, 
269 

Transportation, control of, 214-218 

Trau incident, 56 

Treaty of peace, as method of ter- 
minating war, 223-224, 228-229, 
231, 232; negotiation of, 237, 242- 
246 

Tripoli, war with, 63 

Trist, Nicholas, peace commissioner, 
238, 239 

Troops, reciprocal passage of, 40-41 ; 
use of in aid of civil power, 43- 
44; see also Army 

Turkey, diplomatic relations with, 
36, 93 

Tyler, John, President, inchoate in- 
terest in Texas, 47, 48 

Upshur, A. P., Secretary of State, 
on executive power, 12 

Van Buren, Martin, Senator, on 

Panama Congress, 28, 39 
Venezuela affair, 30, 89-90 
Vera Cruz, occupation of, 52 
Versailles, treaty of, 246 
Virginius incident, 30, 41 
Voluntary enlistment, 101-105 

Wadsworth, James, Senator, on con- 
trol of administration, 172 



Wage commission, 263 

War, articles of, 138, 141; declara- 
ation of, 46, 58-64, 71-76, 78-80, 
82-98, 104, 226, 266; notification 
of, 96-97; termination of, 223- 
231, 232, 235-236, 247-248; see 
also Austria-Hungary, Civil War, 
Germany, Mexico, Eevolutionary 
War, Seminole War, Spain, Trip- 
oli, and passim 

War of 1812, beginning of, 85-86; 
declaration of, 95, 226; militia in, 

132, 133, 136; control of commerce 
during, 208; armistice proposal, 
233; termination of, 247 

War Cabinet, 172-173, 177 

War Industries Board, 172, 178, 179, 

210, 211-212 
War Eisk Insurance Bureau, 172, 176 
War Trade Board, 171, 179, 201, 210 
Washington, George, General, as dic- 
tator, 18, 203; President, power of 
defense, 62; army organization, 
111; exercise of personal command 
120, 135; exercise of pardon, 143; 
Lieutenant General, 103 
Whiskey Eebellion, 135, 149 
White, Henry, peace commissioner, 

239 
Whiting, W., on defensive war, 59; 

on civil rights in war, 183 
Wickersham, George W., Attorney 
General, opinion on use of militia, 

133, 134; on power to make peace, 
230 

Willard, Daniel, direction of rail- 
road operation, 215 

Willoughby, W. W., on executive 
power, 14; on declaration in civil 
war, 76; on powers of reconstruc- 
tion, 251 

Wilson, Woodrow, on executive pow- 
er, 12; on formulation of foreign 
policy,-. 26; President, relations 
with Mexico, 30, 35, 52, 67; severs 
relations with Germany, 36; arm- 
ing of merchant vessels, 68, 69, 



296 



WAE POWERS OF THE EXECUTIVE IN UNITED STATES 



[296 



70; war influence, 92-93; procla- 
mation of war, 97; conscription, 
105, 108, 169 ; direction of military 
operations, 120, 123, 125; refusal 
to appoint Roosevelt to command, 
130; court-martial procedure, 141, 
142 ; exercise of pardon, 151 ; con- 
trol of war administration, 170, 
171, 177, 178, 268; opposes War 
Cabinet, 173; exercise of ques- 
tionable authority, 175; control 
of aliens, 185-186; censorship, 197, 
200, 201; control of economic re- 
sources, 203, 204, 205, 209, 210, 
211, 212, 213, 215, 216, 217, 219; 
termination of war, 226, 230, 236; 
armistice, 234 ; demobilization, 
235; peace negotiations, 239, 240, 
242, 243, 244, 246; powers of re- 
construction, 208, 262, 268 



Wilson-Eoosevelt doctrine, 12-13 

Wood, Leonard, Major General, 43, 
130, 159, 259 

Woolsey, T. S., on breaking of dip- 
lomatic relations, 36; on declara- 
tion of war, 58 

Worcester, Dean C, member of Phil- 
ippine Commission, 157, 260 

World War, administrative author- 
ity of President in, 170; censor- 
ship during, 197, 202, necessity 
for economic control, 203, 204; 
war powers in, 268, 269; see also 
Austria-Hungary, Germany 

Wright, Luke E., member of Phil- 
ippine Commission, 260; vice- 
governor, 261 

X Y Z correspondence, 81, 82 



VITA 

Clarence Arthur Berdahl was born in Minnehaha County, 
South Dakota, June 14, 1890. His early education was obtained 
in the common schools of Minnehaha County and at Augustana 
College (academy). Canton, South Dakota, from which he was 
graduated in 1911 as valedictorian. In the fall of 1911 he en- 
tered St. Olaf College, at Northfield, Minnesota, on a scholar- 
ship, and at the end of his Junior year received one of the four 
Talla scholarships. He was graduated in 1914, receiving the 
degree of Bachelor of Arts with highest honors. 

After graduation, he taught History and Civics for one year 
in the High School at Fergus Falls, Minnesota ; and spent some 
time in the government service at Washington, as clerk in the 
Archives Division of the War Department and as assistant in the 
Periodicals Division of the Library of Congress. During the 
school year of 1916-1917, he took up graduate work in History, 
Political Science, and Economics, at the University of South 
Dakota, receiving the degree of Master of Arts in June, 1917. 
In October, 1917, he entered the University of Illinois, where, 
except for a period of service in the army, he has since held a 
Fellowship in Political Science. In the spring of 1920, he was 
elected a member of Phi Beta Kappa. 

Since 1917 he has assisted in compiling the lists of publica- 
tions of political interest for the American Political Science 
Review; in the summer of 1919 he assisted Professor Cole in 
editing the Illinois Constitutional Debates of 1847; and he has 
published an article on the Richards primary law of South Da- 
kota, in the American Political Science Review (February, 1920). 



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